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2016 (5) TMI 998 - CESTAT MUMBAI

2016 (5) TMI 998 - CESTAT MUMBAI - 2016 (43) S.T.R. 625 (Tri. - 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 Te .....

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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 - Dated:- 11-3-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shri V .....

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on the output service on the ground that they have provided Business Auxiliary 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 adjudicati .....

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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 .....

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rks (P) Ltd. -2006 (3) S.T.R. 161 (Tri.-Del.) (viii) M/s. Kalpataru Power 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 .....

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the amount paid by the appellant is service tax only and not on any other 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 In .....

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. Commr. of C. Ex.(S.T.), Chennai 2010 (20) S.T.R. 663 (Tri.-Chennai) (viii) 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 .....

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d only under Section 11B, the limitation provided in the said Section shall 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 ref .....

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he amount under a particular head such as service tax, excise duty etc. and 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 i .....

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though the refund of duty recovered without authority of law but for the 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 authorit .....

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nctioning 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 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 previou .....

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emedy as it might be advised. See the observations of this Court in Miles 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, le .....

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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 .....

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