TMI Blog2018 (1) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... d Service Tax (Appeals), Jaipur-I] 1.1 This Court while admitting the appeal on 31.05.2017 framed following substantial questions of law:- (i) Whether the ld. Tribunal was justified in holding that the assessee was entitled for refund of ₹ 8,26,637/- on the ground that the bar of limitation as provided under Section 11B of the Act will not apply.? (ii) Whether the ld. Tribunal was justified in holding that the assessee was entitled for refund of ₹ 7,94,490/- on the ground that once an order has already been passed by the ld. Commissioner (Appeals) thereafter the order passed by the ld. Commissioner in Review is not sustainable and that the assessee has satisfactorily provided the necessary evidences for proving its claim of unjust enrichment before the ld. Adjudicating Authority? 2. The brief facts of the case are that the respondent-M/s Gulshan Chemicals Limited, A-595, Industrial Area, Bhiwadi (hereinafter referred to as the assessee) are engaged in the maunfacture of Sodium Hydro Sulphite falling under Sub Heading No. 28.31 of the schedule to Central Excise Tariff Act, 1985. Filed three refund claims of ₹ 4,98,498 5,18,900 6,3,729 as they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai), wherein it has been observed as under: The appellants are in appeals against the impugned orders wherein their refund claims were rejected by the learned Commissioner (Appeals) on the Ground that the refund claim is hit by the limitation prescribed in Section 11B of the Central Excise Act, 1944. 2. Brief facts of the case are that the appellants are ultimate owner of the residential flats sold to them by the builder who paid the service tax on the residential flats. As per the Circular No.108/2/2009-ST, dated 29.1.2009, there was no service tax liability on sale of the residential flats to the appellants. Admittedly, when no service tax was payable by the appellant therefore, they have filed a refund claim. The adjudicating authority sanctioned the refund claim but on appeal by the Revenue, the claim for refund was rejected. Aggrieved by the said order, the appellants are before me. 3. The contention of the appellants is that as they were not required to pay the service tax therefore, the provisions of Section 11B of the Central Excise Act 1944, are not applicable to them. To support his contentions the learned Advocate placed reliance on the decision of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal and the Tribunal in upholding the order of the Assistant Commissioner came to a conclusion that the Challans which have been filed along with the refund application show that the Service Tax payments were made during the period 2006-2007 and 2007-2008 and last such challan was dated 1-12-2007. The Tribunal also noticed that the Service Tax liability for the period May, 2004 to March, 2006 was discharged in May, 2006. If the refund claim was submitted in the office of the Assistant Commissioner on 28-4-2010, then, it was clearly beyond the period of one year prescribed under Section 11B(1) of the Central Excise Act, 1944. 15. Mr. Desai would submit that an unconstitutional levy is also illegal. If the levy is unconstitutional meaning thereby it is null and void ab initio, then, the judgment in Mafatlal Industries (supra) would permit consideration of an application for refund filed belatedly. Mr. Desai submits that all that the judgment of the Nine Judge Bench holds is that unconstitutional and illegal levies cannot be upheld. In his submission, the predominant consideration while giving relief to the petitioners and applicants who seek refund of the amounts paid pursu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Appellant as Service Tax. That tax was not imposable or leviable on export of services was a clarification made by the Department and relying on that clarification, the refund of duty or Service Tax was claimed. This was squarely a case falling within the provisions of the Central Excise Act, 1944 and therefore, the rule of limitation under Section 11B was applied. That was applied when the application for refund was made invoking Section 11B of the Central Excise Act, 1944. We have no manner of doubt that when this was the provision invoked, same applies with full force including the rule of limitation prescribed therein. For these reasons, we are of the opinion that the decisions relied upon cannot be of any assistance. and also relied upon in case Jubilant Enterprises P. Ltd. vs. Commissioner of C. Ex. Mumbai, 2014 (35) STR 430 (Tri.- Mumbai), wherein it has been observed as under:- 1. The appellant is in appeal against the impugned order wherein the refund claim has been rejected by the lower authorities holding that same is barred by limitation. 2. The brief facts of the case are that the appellant rented their premises to CESTAT, Mumbai and during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within 30 days of the communication of the same. 4. However, with a view to avoid the circular limit the common appeal is filed. He has relied upon in the decision of Supreme Court in Suchitra Components Ltd. vs. Commissioner of Central Excise, Guntur, 2007 (208) ELT 321 (SC), wherein it has been observed as under:- 1. This appeal is directed against the final order No. 204/05- NB-A dated 14th January, 2005 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi in Appeal No. E/3422/93-NB-A. 2. We have heard Mr. A.R. Madhav Rao, learned Counsel for the appellant and Mr. K. Radhakrishna, learned Senior Counsel for the respondent. We have perused the orders passed by the lower Authorities and also of the Tribunal. The point raised by the learned Counsel for the appellant is covered by the recent judgment of this Court in Civil Appeal No. 4488 of 2005, Commissioner of Central Excise, Bangalore v. Mysore Electricals Industries Ltd. reported in MANU/SC/8687/2006 : 2006(204)ELT517(SC) . In the said Judgment, this Court held that a beneficial circular has to be applied retrospectively while oppressive circular has to be applied prospectively. Thus, when ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
