2014 (10) TMI 164

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..... ts principal situated in a foreign land. They were depositing the service tax on the said services, by treating the same as falling under the category of Business Auxiliary Service. However, subsequently they realised that as they are providing services to an overseas principal, the same would amount to 'Export of Services', which were not liable to service tax. Accordingly, they filed refund claims of service tax paid by them in cash as also through CENVAT credit. 3. The original adjudicating authority rejected the refund claims by observing that the appellants activities correctly fall under Business Auxiliary Services, which are liable to service tax. He did not agree with the contention of the appellants that the same would amount t .....

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..... her note that Revenue has also contended that the part of the refund stands filed after the normal period of limitation. We note that while rejecting the refund claim of the assessee relatable to payment of service tax through CENVAT credit, Commissioner (Appeals) has observed as under:-               The next question before me is whether the limitation prescribed under Sec.11B is applicable in this case or not. The contention of the appellant is that the said amount was not a tax, hence the one year bar is not applicable in this case, but I find that the contention of the appellant is not sustainable as the Hon'ble High Court of Delhi, in Jumax Foam (P) Ltd. v. UOI, 2003 (1 .....

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..... cating Authority found that the payment from CENVAT Credit was deemed to be made on the due date of payment of tax, hence the claim is barred by limitation to that extent. I find no infirmity in the said findings. Moreover, the claim of refund of payments made by way of debit in CEMNVAT Credit A/c. is, otherwise also not admissible on merits, as discussed hereinafter. The above part of the order of the Commissioner (Appeals) does not stand challenged by the assessee. As such it can be concluded that the same has attained finality. Otherwise also we find that the law on the limitation is well settled and the Tribunal being the creature of statute, cannot go beyond the provisions of the Act or Rules. The reliance placed by Commissioner (App .....

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