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Benzy Tours & Travels Pvt. Ltd. Versus Commissioner of Service Tax, Mumbai-I

2016 (5) TMI 998 - CESTAT MUMBAI

Period of limitation - Refund claim - filed after one year from the relevant date - Service tax paid on the output service - Business Auxiliary Services (Visa Services) - Held that:- in view of the Hon'ble Supreme Court judgment in the case of Assistant Collector of Customs Vs. Anam Electrical Manufacturing Co. [1997 (1) TMI 80 - SUPREME COURT OF INDIA] and jurisdictional Bombay High Court judgment in the case of Andrew Telecom (I) Pvt. Ltd. Vs. Commissioner of Customs & Central Excise Goa [2014 .....

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ot relax the time limitation provided under the statute. As per my above discussion and settled legal position, I am of the considered view that the refund claim being filed after one year is hit by limitation and therefore correctly rejected by the lower authority. - Decided against the appellant - Appeal No. ST/86430/15 - A/87236/16/SMB - Dated:- 11-3-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shri Vinod Awtani, C.A. For the Respondent : Ms. P. Vinitha Sekhar Dy. Commr. (A .....

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liary Services (Visa Services) which is out of scope of service tax applicability. Since the service tax was paid during the period April 2009 to September 2009 and refund claim was filed on 23.4.2010 show cause notice was issued proposing rejection of refund claim on the ground of time bar as per Section 11B of the Central Excise Act ,1944 as the refund claim was filed after one year from the relevant date. The adjudicating authority vide Order-in-Original rejected the refund claim being time b .....

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vice tax the amount paid by them was without authority of law. Therefore for the purpose of refund of the said amount limitation as provided under Section 11B of the Central Excise Act, 1944 is not applicable. In support of his submission he placed reliance on the following judgments: (i) Commr. of C.Ex., (Appeals) Vs. Bangalore Vs. KVR Construction-2012 (26) S.T.R. 195 (Kar.) (ii) Geojit BNP Paribas Financial Services Ltd. Vs. C.C.E., Cus. & S.T., Kochi 2015 (39) S.T.R. 706 (Ker.) (iii) Com .....

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Transmission Ltd. Vs. Commissioner of Central Excise and Service Tax, Ahmedabad-2016-TIOL-47-CESTAT-AHM (ix) Jubiliant Enterprises P. Ltd. Vs. Commissioner of C. Ex. Mumbai -2014 (35) S.T.R. 430 (Tri.-Mumbai) (x) C.C.E & S.T. Bhavnagar Vs. Madhvi Procon Pvt. Limited-2015 (38) S.T.R. 74 (Tri.-Ahmd.) 4. On the other hand, Ms. P. Vinitha Sekhar, Ld. Deputy Commissioner (A.R.) appearing on behalf of the Revenue reiterates the finding of the impugned order. She submits that though the Ld. Counsel .....

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account. Therefore refund of the said amount shall be governed by Section 11B and there is no other provision for refund. Section 11B prescribed time limit of one year for filing the refund claim that is to be mandatory complied with by the assessee claiming refund. She placed reliance on the following judgments. (i) Collector of C.E., Chandigarh Vs. Doaba Co-operative Sugar Mills 1988 (37) E.L.T. 478 (S.C.) (ii) Miles India Limited Vs. Assistant Collector of Customs 1987 (30) E.L.T. 641 (S.C.) .....

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i) Elgi Equipments Ltd.Vs. Commissioner of C. Ex., Coimbatore 2013 (31) S.T.R. 583 (Tri.-Chennai) (ix) Union of India Vs. Rahasthan Spinning and Weaving Mills Ltd. 2014 (310) E.L.T. 296 (Raj.) (x) M.C.I. Leasing (P) Ltd. Vs. Commissioner of Central Excise, Mysore 2014 (33) S.T.R. 497 (Kar.) 5. I have carefully considered the submissions made by both the sides. I find that the appellant have admittedly paid the service tax on Business Auxiliary Service even though such service was not leviable to .....

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l also apply for sanction of refund. There is no other provision for refund of Service Tax/Excise duty except Section 11B of the Act, therefore limitation is applicable. It is the contention of the Ld. Counsel that if the service is not a taxable service the payment made is without authority of law, hence Section 11B is not applicable for refund of the such amount. In this regard, I am of the view that in every case of refund the amount is refundable only where it is not payable and accordingly .....

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d when subsequently it is found that this amount is not payable, the same amount stand refundable to the assessee and such refund is treated as refund of service tax/duty only. Therefore, the provision if any applies for refund of such duty is only provided under Section 11B and there is no any other provision. Therefore in my view, any amount which is to be refunded shall be refunded in accordance with Section 11B which include the condition of time limitation. As regard judgments cited by the .....

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refund claims made before the departmental authorities, limitation provided under the Customs Act/Central Excise Act or the Rules made thereunder is applicable. The authorities functioning under the Act bound by its provision in the case of Doaba Co-operative Sugar Mills (supra) which was held that- 6. It appears that where the duty has been levied without the authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rules framed thereunder ha .....

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ceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount due to the department in case when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund. This was the view taken by the Tribunal in a previous decision in the case of Miles India Ltd. v. The Assistant Collector of C .....

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India Ltd. v. The Assistant Collector of Customs [1987(30) E.L.T.641 (S.C.) = 1985 E.C.R. 289]. In the case of Miles India Ltd. (supra) held that- After the matter was heard for some time and it was indicated that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefore under Section 27(1) of the Customs Act, 1962, learned counsel for the Appellant sought leave to withdraw the appeal. We ac .....

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llowing guidelines : Where refund application was filed by?(1) manufacturer/purchaser beyond the statutory time limit of Section 11B/27 ibid. In the case of Bajaj Foods Ltd. (supra) the Hon ble Tribunal held as under The Appellate Tribunal in its impugned order had held that the limitation period prescribed under the Limitation Act would not apply for the refund of export cess which was paid by the appellant on account of ignorance of the law. Since the refund claim was filed beyond the period p .....

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