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2018 (10) TMI 704

of Delhi in the case of Delhi Chit Fund Association Vs. U.O.I. [2013 (4) TMI 630 - DELHI HIGH COURT] - rejection of refund claim on the ground of limitation. - Held that:- From a conjoint reading of Section 73A and Section 11B, it is clear that as per Section 11B, an application for refund shall be made before the expiry of one year from the relevant date in such 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, .....

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nt has provided Chit Fund Foreman Service and paid service tax for the period 03.12.2012 to 07.01.2014. Subsequent to the decision of the Hon ble High Court of Delhi in the case of Delhi Chit Fund Association Vs. U.O.I. - 2013 (30) S.T.R. 347 (Del.) which was decided on 23.04.2013 (S.L.P. against which was dismissed on 07.01.2014 by the Hon ble Supreme 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 .....

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; that the time limit prescribed under Section 11B having expired, the action of the lower authorities was justified since the time limit prescribed is one year; that the decision of the Hon ble High Court of Delhi is in respect of some other assessee, the benefit of which cannot be availed by any other assessee in terms 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, Mumba .....

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The Central Excise Officer shall, after considering the representation, if any, made by the person on whom the notice is served under sub-section (3), determine the amount due from such person, not being in excess of the amount specified in the notice, and thereupon such person shall pay the 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 .....

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73A talks of deposit of Revenue into Government account alone whereas Section 11B deals with claim for refund of duty paid, if any. The role of each of the Sections is specific as per their headings :- Section 73A. Service Tax collected from any person to 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 .....

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such duty] may make an application for refund of such [duty and interest, if any, paid on such duty] to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [one year] [from 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 .....

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refund was made invoking Section 11B of the Act ibid., and therefore I am clear that when this provision is invoked, the same applies with full force including the rule of limitation prescribed therein. 10. From the above discussions, it is therefore clear that there has been a delay of more than two years and it only points out that it is clearly an afterthought, to claim the benefit of a judgement that such an application for refund was made; and on perusal of the appeal records, I find that the assessee has nowhere whispered any reasons as to such an inordinate delay in making its application for refund. 11. For the above reasons, I am of the considered view that the impugned Order does not require any interference and therefore, I dism .....

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