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2019 (4) TMI 443

filed beyond the statutory period of one year i.e. on 07.01.2016 - time limitation - Held that:- In view of Section 83 of the Finance Act, 1994, Section 11B of the Central Excise Act, 1944 and its ancillary provisions are applicable to service tax matters. - The leading case of Mafatlal Industries [1996 (12) TMI 50 - SUPREME COURT OF INDIA] governs the rule of refund as contemplated in Section 11B of the Central Excise Act, 1944 - In view of the binding president of the judgment of the Hon’ble Supreme Court in Mafatlal Industries case, except where unconstitutionality of a provision under the levy was created, no refund is admissible if filed beyond the prescribed limit stipulated in Section 11B of the Central Excise Act, 1944. - Ap .....

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in 2017 (10) TMI 659, M/s Pallavapuram Tambaram MSW Pvt. Ltd. Judgment reported in 2018 (6) TMI1487, both of the Hon ble Bombay High Court and CESTAT decisions respectively, submitted that limitation prescribed under Section 11B of the Central Excise Act, 1944 is not applicable to the refund claims for service tax paid under a mistake of law for which the said amount paid, which is contrary to Section 265 of the Constitution of India, should be treated as deposit and refundable accordingly to the appellant by setting aside the order of the Commissioner (Appeals). 4. Learned AR for the respondent-department Shri S.B. Mane, Assistant Commissioner, in response to such submission had argued with reference to the decision passed by the Larger Be .....

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tion of the High Courts under Article 226 of the Constitution or of this Court under Article 32 - is concerned, it remains unaffected by the provisions of the Act. Even so, the Court would, while exercising the jurisdiction under the said articles, have due regard to the legislative intent manifested by the provisions of the Act. The writ petition would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it over-ride it. The power under Article .....

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