TMI Blog2018 (10) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... uch form and manner as prescribed and from a reading of the above Sections it is also clear that Section 73A talks of deposit of Revenue into Government account alone whereas Section 11B deals with claim for refund of duty paid, if any - the refund claim made by an assessee, if found in order, has to be entertained only on an application in terms of Section 11B alone and therefore, an assessee claiming refund has to pass through the tests prescribed under Section 11B. A duty would become refundable as a consequence of judgement, etc., implying that such judgement, etc., should only be in the assessee s case and not in any other case. The refund of the same was claimed because of the classification made by the Department, by virtue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court), the appellant herein filed an application for refund on 09.08.2016 contending that the Hon ble High Court of Delhi in the above case had held that no service tax was chargeable on the services rendered by the foreman in a business of chit fund. A Show Cause Notice thereafter was issued, on 06.10.2016 pointing out inter alia that the appellant s claim was liable to be rejected in terms of Section 11B of the Central Excise Act, 1944, to which the appellant filed its replies on various dates and after due process of law, the adjudicating authority rejected the refund claim on the ground of limitation. The appellant did not meet with success in its first appeal before the lower appellate authority, who vide the impugned Order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of Section 11B(5)(ec) of the Act; that the tax was paid voluntarily by the assessee on its own volition and even as on date, they have not disputed the same but for claiming refund, etc. 4.2 Ld. DR also relied on the findings of the lower appellate authority at paragraph 7 of the Order and he also drew support from the decision of the Hon ble Bombay High Court in the case of Maharashtra Cylinders Pvt. Ltd. Vs. CESTAT, Mumbai 2010 (259) E.L.T. 369 (Bom.). 5.1 I have considered the rival contentions, perused the documents placed on record and have also gone through the decisions referred to during the course of arguments. Section 73A of the Finance Act, 1994 which has been relied on by the Ld. Consultant reads as under : 73A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount so determined. (5) The amount paid to the credit of the Central Government under sub-section (1) or sub-section (2) or sub-section (4), shall be adjusted against the service tax payable by the person on finalisation of assessment or any other proceeding for determination of service tax relating to the taxable service referred to in sub-section (1). (6) Where any surplus amount is left after the adjustment under sub-section (5), such amount shall either be credited to the Consumer Welfare Fund referred to in section 12C of the Central Excise Act, 1944 (1 of 1944) or, as the case may be, refunded to the person who has borne the incidence of such amount, in accordance with the provisions of section 11B of the said Act and such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be deposited with Central Government Section 11B. Claim for refund of duty and interest, if any, paid on such duty. 5.4 When it comes to dealing with refund, Section 73A takes the backseat leaving it to Section 11B to take it forward and nowhere in Section 73A does it prescribe a separate application. Viewed from this angle, the word may used in Section 73A(6) is required to be construed as shall since, otherwise, the Department not having any machinery to work out refund or related issues on its own without there being any application for the same, cannot lead the way. 5.5 The discussion above ultimately points out that the refund claim made by an assessee, if found in order, has to be entertained only on an application in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the relevant date] [[in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of [duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such [duty and interest, if any, paid on such duty] had not been passed on by him to any other person : . . (5) . . [(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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