TMI Blog2018 (6) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... ate. Principle of unjust enrichment - Held that:- Though the appellant has produced certain letters, which have been written by BSNL to them claiming the refund of service tax paid by them but the same has not been refunded to them so far and therefore the principle of unjust enrichment is applicable in the present case since the appellant has collected the service tax from BSNL. Appeal dismissed - decided against appellant. - ST/20876/2015-SM - 20756/2018 - Dated:- 25-5-2018 - SHRI S.S GARG, JUDICIAL MEMBER Shri lyre John, CA CHERIYAN CHERIYAN For the Appellant Shri Madhupsharan, Asst, Commissioner(AR) For the Respondent Per: S.S GARG The present appeal is directed against the impugned order dt 06/01/2015 passed by the Commissioner whereby the Commissioner(Appeals) has rejected the appeal of the appellant. 2. Briefly the facts of the present case are that the appellant filed an application dt. 01/04/2013 for refund of ₹ 27,00,985/- for the period 27/02/2011 to 03/01/2013 and subsequently revised claim of ₹ 24,61,376/- was filed. The appellant entered into two agreements with M/s. BSNL as contractor for the construction of certain civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of time bar is concerned since there was no liability to pay the amount and the amount has been erroneously paid, it does not take the character of tax and hence the provisions of Section 11B are not applicable. In support of this submission, he relied upon the following decisions:- i. Nataraj and Venkat Associates Vs. AC, Service Tax (Mad) [2010 28 VST 525 (Mad)] ii. Corporation Bank Vs. Saraswati Abharansala and another (SC) [2009 19 VST 84 (SC)] iii. Saraswati Abharanasala Vs. Corporation Bank (Ker) [2009 19 VST 73 (Kar)] iv. South India Corporation (P) Ltd. Vs. AC of Sales Tax [93 ST 194] v. Munch Food Products Ltd. Commissioner another (Del.) [2012 15 GSTR 248] vi. CCE(Appeals) vs. KVR Constructions [2012 50 VST 469 (Kar.)] 4.2. It is his further submission that in all these decisions relied upon by him, it was held in principle that service tax paid erroneously will not be hit by the provisions of Section 11B and was liable to be refunded. He further submitted that Hon'ble Kerala High court in the case of Geojit BNP Paribas Financial Services Ltd. vs. CCE,C ST, Kochi [2015 85 VST 76], after referring to the decisions of the Karnataka High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has collected the service tax from the BSNL but according to the consultant, BSNL has withheld final payment due for the reasons that the service tax collected has not been refunded and there is an arbitration case going on between the appellant and the BSNL and the appellant has also produced letters 01/11/2016 and 05/10/2016 and other letters issued by the BSNL informing the appellant that the amount relating to service tax collected from them be remitted and if not repaid, will be recovered from bills. 5. On the other hand, the learned AR defended the impugned order and submitted that though the learned counsel for the appellant has relied upon certain judgments in his favour but the Hon'ble Supreme Court in various judgments categorically held that in case of refund of any amount, it is governed by Section 11B of the CEA only and the statutory time limit provided under Section 11B shall be applicable for refund of any amount. He further submitted that the refund of the amount claimed by the appellant shall be governed by Section 11B and there is no other provision for refund, Section 11B prescribes time limit of one year for filing the refund claim that is to be mandator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n amount which is excess paid over and above the legal obligation (making the excess paid tax as not a tax) the provisions of appropriate tax law has to be applied. The Hon'ble Supreme Court in Miles India Ltd. v. Assistant Collector of Customs reported in 1987 (30) E.L.T. 641 (S.C.) held that the tax authorities are bound by the period of limitation as provided by the relevant Act. Hon'ble Bombay High Court in Andrew Telecom (l) Pvt. Ltd. v. CC CE, Goa reported in 2014 (34) S.T.R. 562 (Bom.) held that even a writ petition under Article 226 of the Constitution of India cannot be decided by overriding a law or legal regime. There is no warrant or justification for holding that a stale or belated claim can be granted in a Constitutional remedy by ignoring a statutory prescription. Hon'ble Karnataka High Court in M.C.I. Leasing (P) Ltd. v. CCE, Mysore reported in 2014 (33) STR. 497 (Kan) held that when the Act provides a complete mechanism for correcting any errors whether on fact or on law the burden 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution 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 (l) Pvt. Ltd. (supra) brings out the legal provisions more clearly. Having examined the various case laws, legal provisions and the powers of the Tribunal we are of the considered view that he appellant's claim cannot be held to be validly made. 6.2. Further, in the case of Rajasthan State Mines and Minerals Ltd. cited supra, the Division Bench of this Tribunal, in para 7 8, has observed as under:- 7. The point seriously urged by the appellant before us is that various High Courts have permitted refund under similar circumstances, where tax has been collected by the Revenue, where it was not required to be paid. The appellant has relied upon three judgments of the Hon'ble H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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