TMI Blog2016 (12) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that at the time of payment even though the service tax was not payable but the appellant paid the amount as service tax only. Therefore the refund thereof is governed by the provisions of Section 11B of the Central Excise Act, 1944. The Ld. Counsel relied upon various decisions. However some of the judgments were given under the writ jurisdiction by the High Court under Articles 226 and 227. The Hon’ble Supreme Court in the case of Union of India Vs. Kirloskar Pneumatic Company [1996 (5) TMI 87 - SUPREME COURT OF INDIA] held that under the writ jurisdiction High Court cannot direct the customs authority to ignore the time limit prescribed under Section 27 of the Act. The refund claim filed after one year from relevant date, i.e. from the date of payment of service tax in the present case is clearly time barred. We therefore upheld the impugned order - appeal dismissed - decided against appellant-assessee. - Appeal No.ST/383/11 - ORDER NO.A/93408/16/STB - Dated:- 20-10-2016 - Mr. Ramesh Nair, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri L. Badrinarayan, Advocate with Shri Vinay Jain, C.A. for Appellant Shri S.L. Karoliya, Asstt.Commr., (A.R) fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact it is a deposit lying with the department. The amount paid and collected by the department is without the authority of law. In such circumstances the limitation of one year period will not apply. The provision of Section 11B is applicable only in respect of excise duty/service tax paid with the authority of law. In the present case since there was no authority of law for collection of service tax on the services received by the appellant prior to 18.04.2006, the provision of Section 11B including the limitation of time period of one year shall not apply. In support of his submission he placed reliance on the following judgments: (i) Indian National Ship Owners Association Vs. Union of India 2008-TIOL-633-HC-MUM-ST (ii) Commr. Of C.Ex. (Appeals), Bangalore Vs. KVR Construction 2012 (26) S.T.R. 195 (Kar.) (iii) Natraj And Venkat Associates Vs. Asstt. Commr. Of S.T., Chennai-II 2010 (17) STR 3 (Mad.) (iv) M/s. PSL Ltd. Vs. Commissioner of Central Excise, Rajkot 2014-TIOL-675-CESTAT-AHM (v) Geojit BNP Paribas Financial Services Lltd. Vs. Commissioner of Central Excise, Customs and Service Tax, Kochi 2015-TIOL-1602-HC-Kerala-ST (vi) Commissioner of Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of payment even though the service tax was not payable but the appellant paid the amount as service tax only. Therefore the refund thereof is governed by the provisions of Section 11B of the Central Excise Act, 1944. The Ld. Counsel relied upon various decisions. However some of the judgments were given under the writ jurisdiction by the High Court under Articles 226 and 227. The Hon ble Supreme Court in the case of Kirloskar Pneumatic Company (supra) held that under the writ jurisdiction High Court cannot direct the customs authority to ignore the time limit prescribed under Section 27 of the Act. Therefore the High Court judgments relied upon by the Ld. Counsel which were passed in the writ jurisdiction cannot be applied in the present case. As regard other judgments relied upon by the Ld. Counsel, these stand distinguished in the light of the judgment of this Tribunal in the case of M/s. Giriraj Construction (supra) wherein almost all the judgments on the issue of limitation has been considered. The relevant portion of the order in Giriraj Construction case is reproduced below: 6. We find that the appellant have admittedly paid the service tax on Commercial or Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are therefore of the view that this issue has been clearly settled by the Hon'ble Supreme Court that even 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 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 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 proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f export cess which was paid by the appellant on account of ignorance of the law. Since the refund claim was filed beyond the period prescribed under the Customs Act, the same was rightly held by the Commissioner as not sustainable being barred by limitation period. The above judgment was upheld by the Hon'ble Gujarat High Court. Similarly in the case of Andrew Telecom India Pvt. Ltd. of the Hon'ble Bombay High Court, the fact was that the assessee paid the service tax, which was not payable and subsequently refund claim was submitted after one year of the payment. The Hon'ble High Court has held that the refund claim is covered by Explanation (B) (f) of Section 11B (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. In view of the above, Hon'ble Supreme Court judgments and the jurisdictional Bombay High Court judgment, all the judgments relied upon by the Ld. Counsel stand distinguished. We are of the view that since refund of any amount is governed by Section 11B and there being no other provision, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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