TMI Blog2019 (3) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, which itself makes a provision for limitation of six months from the relevant date i.e. date of payment, claim for refund filed for the period beyond six months from the relevant date is not admissible - Now this period being amended to one year vide Act of 2000 with effect from 12.05.2000; therefore, when a specific limitation has been provided under Section 11 B, then that limitation has to be adhered specially when it is not the case of appellant that he had deposited such amount under protest to carve out an exception under second proviso to Section 11 B (1). In the present case challenge is only restricted to refund, which is governed by Section 11 (B) of the Central Excise Act and since second proviso below Section 11 (B) prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the appeals filed by the Revenue against the Tribunal's order in case of Shilpa (Supra) and Roop Chaya (Supra), and therefore, his claim for refund should have been processed specially when no assessment order was passed under the provisions of Section 72 of the Financial Act 1994. The learned counsel for the appellant contends that the appeal raises the following substantial questions of law: A. Whether, the order passed by the learned Tribunal and the authorities below are not sustainable in view of the facts and circumstances of the case? B. Whether, the levy of tax from the appellant on the cost of material is hit by Article 265 of the Constitution of India.? C. Whether, to retain the tax illegally collected, the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice provided to a customer, by a photography studio or agency in relation to photography, in any manner. Section 66 is the charging Section. Sub-section (5) levies a service tax at the rate of five per cent of the value of the taxable services referred to in clause (zb) of section 65 (72). Section 67 provides that the value of taxable service shall be the gross amount charged by the service provider for such service rendered by him. The Explanation to Section 67 exempts only the cost of unexposed photography film, unrecorded magnetic tape or such other storage device, if any, sold to the client during the course of providing the service. As some doubt was raised regarding the interpretation of these provisions by that Letter the Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11 B (1). Therefore, reference of the appellant to the case of M/s Shilpa Colour Lab and M/s Shri Roopchhaya Colour Studio (supra) would have been applicable if appellant would have challenged the authority to impose such service tax but in the present case challenge is only restricted to refund, which is governed by Section 11 (B) of the Central Excise Act and since second proviso below Section 11 (B) prescribing limitation of one year provides for an exception that such limitation may not be attracted if any duty and interest is paid under protest, is not available to the petitioner. Therefore, in the light of the law laid down in the case of Union of India Vs. Namdang Tea Estate (supra) , no substantial question of law eme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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