TMI Blog2016 (5) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of Central Excise Act 1944, as applicable to service tax vide Section 83 of the Finance Act, 1994, refund claim is not sustainable as it was filed beyond 1 year from the date of payment of service tax. Since refund of any amount is covered by Section 11B and there no other provision, this Tribunal being a creature under the Central Excise/Customs Act cannot go beyond the statute and therefore cannot 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 - Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppearing on behalf of the appellant submits that the service tax levy was not on the output service provided by them. However they paid the service tax. Since there was no levy of service 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) Commissioner of C.Ex., Bangalore-III Vs. Motorola India Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund 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.) (iii) Assistant Collector of Customs Vs. Anam Electrical Manufacturing Co. 1997 (90) ELT 260 (S.C.) (iv) Bajaj Foods Ltd. V. Commissioner 2015 (320) E.L.T A197(Guj.) (v) Andrew Telecom (I) Pvt. Ltd. Vs. Commissioner of Customs Central Excise Goa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice 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 every such amount shall be treated as payment without authority of law, if this is accepted then Section 11B will stand redundant as in every refund matter Section 11B shall not apply for the reason that any amount which is refundable is neither the service tax nor excise duty and all such amount shall be deemed to be paid without authority of law. Therefore in my considered view, at the time of payment the assessee pays the amount under a particular head such as servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Rules framed thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take of law, the appellant may seek recourse to such alternative remedy as it may be advised. The appeal is accordingly dismissed as withdrawn . In the case of Anam Electrical Manufacturing Co. (supra) the Honble Supreme Court with regard to limitation under Section 11B lays down the following 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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