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2016 (6) TMI 414 - CESTAT MUMBAI

2016 (6) TMI 414 - CESTAT MUMBAI - TMI - Refund - Period of limitation - Commercial or Industrial Construction Services - Service tax paid on the output service on which there was no levy - amount paid was without authority of law - Held that:- at the time of payment the assessee pays the 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 treate .....

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orities, 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. - Since the refund of any amount is governed by Section 11B and there being 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. Therefore, the refund claims being filed after o .....

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AKP/102/NSK/2009 both dated 18/11/2009 passed by the Commissioner(Appeals) of Central Excise & Customs, Nasik, whereby Ld. Commissioner(Appeals) partly allowed the appeals of the appellants to the extent of ₹ 81,567/ and ₹ 73,330/-and for remaining amounts Orders-in-Original were upheld. 2. The fact of the case is that appellants are registered as a service provider under the category of Commercial or Industrial Construction Services. The appellants filed refund claim on 23/6/200 .....

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being established solely for educational, religious, charitable, health, sanitation or philanthropic purposes and not for the purpose of profit, are exempted. The Asstt. Commissioner issued show cause notices dated 30/5/2008. The Asst. Commissioner vide Orders-in-Original Nos. 06/ST(R)/2009 dated 29/4/2009 and 06/ST(R)/2009 dated 31/3/2009 rejected the refund claim of ₹ 11,31,144/- and ₹ 9,73,292/- respectively filed by the appellants as not sustainable being time bar under the provi .....

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t to the extent of ₹ 81,567/- and ₹ 73,330/- and for remaining amounts i.e. 10,49,568/- and ₹ 8,99,962/-the Orders-in-Original were upheld, therefore the appellant is before us. 3. Shri. Bharat Raichandani, Ld. Counsel for the appellant submits that the service tax levy was not on the output service provided by them, however they paid 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 .....

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nai-II[2010(17) S.T.R. 3(Mad.)] (e) Commr. of C. Ex. Pune-III Vs. Shankar Ramchandra Auctioneers [2010(19) S.T.R. 222(Tri. Mum)] (f) Jubilant Enterprises P. Ltd Vs. Commissioner of C. Ex. Mumbai-I[2014(35) S.T.R. 430(Tri. Mumbai)] (g) Shree Baidyanath Ayurved Bhawan (Pvt) Ltd Vs. Union of India [1999(106) ELT 293(Pat.)] (i) Hindustan Cocoa Products Vs. Union of India[1994(74) ELT 525(Bom)] (j) Orissa State Electricity Board Vs. Collector of Customs(Appeals)[1992(60) ELT 209] 4. Shri. S.R. Nair, .....

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rvice provided by the appellant is not liable to service tax but 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 mandatorily complied with by the assessee claiming refund. He placed reliance on the following judgments. (i) Collector of C.E., Chandigarh Vs. Doaba C .....

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have carefully considered the submissions made by both the sides. 6. We find that the appellant have admittedly paid the service tax on Commercial or Industrial Construction Service even though such service was not leviable to service tax. However for the purpose of claiming refund of such amount of service tax, which was paid by the appellant under the Central Excise Act, Section 11B is the only provision which deals with refund of any amount refundable to any person. Section 11B is applicable .....

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ment made is without authority of law, hence Section 11B is not applicable for refund of the such amount. In this regard, we are of the view that in every case of refund the amount became refundable only where it is not payable as per law and accordingly every such amount shall be treated as payment without authority of law. If this view 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 n .....

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y is only provided under Section 11B and there is no any other provision. Therefore in our 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 Ld. A.R. on going through those judgments, we find that the judgments which includes the various Supreme Court judgments wherein the Hon ble Supreme Court has categorically held that for refund of any amount, Section 11B stipulates the ti .....

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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 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 fou .....

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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 Customs but it was assailed before this Court. The appeal was withdrawn. This Court observed 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 therefor in th .....

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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 accord their leave to withdraw the appeal but make it clear that the order of the Customs, Excise & Gold (Control) Appellate Tribunal suffers from no infirmity. If really the payment of the duty was under a mistake of law, the appellant may seek recourse to such .....

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