TMI Blog2017 (5) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... 02/02/2011. The period of payment of service tax is 2005-2006 to 2009-2010 - Applying the statutory time limit, it is found that the appellants have preferred the claim after one year of payment of tax. Clearly the claim is hit by limitation. Regarding the submission of the appellant that the amount which is not a tax cannot be retained by the Government, we note that the amount has been paid as service tax under proper heading and was duly appropriated towards the tax liability of the appellant. Any return of the amount collected as tax in terms of provisions of Finance Act, 1994 has to be made in terms of the provision applicable to such collection. We may note here that any money to be returned to the claimant is mainly on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al was returned back by the registry in terms of Section 35B of Central Excise Act, 1944 as the Tribunal is not having jurisdiction in deciding appeal against order of Commissioner (Appeals) dealing with rebate issue. The appellants moved the Hon ble Delhi High Court by way of a writ-petition. The Hon ble High Court vide order dated 25/04/2014 directed the CESTAT to hear and decide the appeal on merits. 3. The learned Counsel for the appellant submitted that the appellants have exported the service and by mistake deposited the service tax on such services. As such, the Department cannot retain the amount which is not legally due to the Government. The reliance placed by the lower authorities on the provision of Section 11B is not correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided in the law. The law of limitation is based on public policy. It aims at certainity and advances the cause of doctrine of finality. We agree with the Original Authority in his analysis of limitation by placing reliance on decision of Hon ble Supreme Court in Antnonysami vs. Arulanandam Pillai (D) by LRs and another AIR 2001 SC 2967 and in P.K. Ramachandra vs. State of Kerala and another (1997) 7 SCC 556. 6. Applying the statutory time limit, we find the appellants have preferred the claim after one year of payment of tax. Clearly the claim is hit by limitation. 7. Regarding the submission of the appellant that the amount which is not a tax cannot be retained by the Government, we note that the amount has been paid as ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urden is to work out remedy with four corners of law. 8. The appellants relied on certain case laws in support of their case. We have examined the same. In Geojit BNP Paribas Financial Services Ltd. vs. CCE reported in 2015 SCC Online Ker 19796 , the Hon ble Kerala High Court was examining the claim of party for refund of service tax paid mistakenly. The Hon ble High Court was dealing with the case under writjurisdiction in terms of Article 226 of the Constitution of India. The Hon ble High Court held that the amount paid by the party has no colour of tax. However, in the present case we are dealing the claim of refund of amount which was duly paid as service tax, later asserted to be not payable. We are dealing with a statutory a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de on the applicability of the said provision. In Shri Vallabh Glass Works Ltd. and another vs. Union of India and others (1984) 3 SCC 362 , the Hon ble Supreme Court was dealing with the provisions of Article 226 of the Constitution for refund of excess paid amount with reference to limitation. The Apex court was dealing with a special leave petition against judgment of Hon ble Gujarat High Court passed under powers of Article 226 of the Constitution. 12. We have noted earlier in this order, the Tribunal can exercise powers within the provisions of Finance Act, 1994 when dealing the statutory appeals relating to service tax matters. The decision of Hon ble Bombay High Court in Andrew Telecom (I) Pvt. Ltd. (supra) brings out the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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