TMI Blog2019 (3) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... r Respondent: Mr. S.K. Shukla (AR) ORDER Per: Ramesh Nair The issue involved is that whether the appellant is entitled for refund of Service Tax paid on commission paid to Foreign Agent which was otherwise not payable as per Notification No. 14/2014-ST in case where the refund was filed beyond the period of 1 year from the relevant date i.e. payment of service tax. 2. Shri. Naresh Satwani Ld. Consultant appearing on behalf of the appellant submits that the service tax was not payable as per Notification No. 14/2014-ST, therefore, whatever tax was paid that was paid without authority of law. Hence, the same was not payment of service tax but it is a deposit, hence time limit of one year should not apply. He placed reliance on the following judgments: Monnet International Ltd-2017 (3) GSTL 380 (Tri.-Del) Flemingo Duty Free Shop Pvt. Ltd.-2018 (8) GSTL 181 (Tri.-Mumbai) 3. Shri. S.K. Shukla, Ld. Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. He submits that even though the service tax was exempted vide Notification No. 14/2014-ST but the appellant had paid the same under the head of service tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount due to the department in case when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund. This was the view taken by the Tribunal in a previous decision in the case of Miles India Ltd. v. The Assistant Collector of Customs but it was assailed before this Court. The appeal was withdrawn. This Court observed that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefore in the relevant provisions of the Customs Act, 1962. If really the payment of the duty was under a mistake of law, the party might seek recourse to such alternative remedy as it might be advised. See the observations of this Court in Miles India Ltd. v. The Assistant Collector of Customs [1987(30) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot available. The decisions where assessee has invoked extraordinary jurisdiction of the High Courts and the Courts have applied the period of limitation of three years, the same is inapplicable to cases where the refund 8 Appeal No. C/10488/2017 application has been moved before the Revenue authority. The decision in the case Escorts Limited vs. UOI 1998 (97)ELT 211 (SC), the Hon'ble Apex Court has held that application for refund is presented before the Customs authority under Section 27 of Customs Act, 1962, the said authority must necessarily operate within the four corners of the said Act and cannot have recourse to Section 72 of the Indian Contract Act, 1872 and the delayed application rightly rejected as time barred. The Hon'ble Supreme Court in the case of UOI vs. Amines and Plasticizers Limited held that refund claims filed beyond the period prescribed under Customs Act, 1962, the High Court order directing the Revenue to ignore the period of limitation and dispose of the refund claim stands set aside in the light of law declared in Mafatlal s case and the refund claim was held to be dismissed as barred by time. The Hon'ble Supreme Court in the case of UOI vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned Commissioner to obtain stay order expeditiously where the orders passed by Commissioner (Appeals) suffer from serious infirmities and it involves grant of heavy refunds. Therefore, the period of one year shall be reckoned from the date of receipt of Commissioner (Appeal) order and not from the date of receipt of Tribunal s order. 7. For the refund claims arising out of order settling the dispute, there is specific provision made under Section 27(1B) which is reproduced below:- Section 27 Claim of refund of duty: - (1B) Save as otherwise provided in this section, the period of limitation of one year shall be computed in the following manner, namely:- (a) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 25, the limitation of one year shall be computed from the date of issue of such order; (b) where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction; As per clau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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