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2019 (6) TMI 571

n filed beyond the period of one year as required under Section 11B and therefore the entire claim was hit by limitation of time - HELD THAT:- When the appellant received the advance from the buyers along with Service Tax and paid the same to the Government as Service Tax and if subsequently, the contract was cancelled between the appellant and his buyers and the appellant filed the refund claim on the ground that no service was provided and hence the provision of Section 11B of Central Excise Act is not applicable is devoid of force. The Larger Bench in M/S VEER OVERSEAS LTD. VERSUS CCE, PANCHKULA [2018 (4) TMI 910 - CESTAT CHANDIGARH] after examining the various decided cases has come to the conclusion that the claim of refund of Service .....

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refund of the amounts paid by them. Accordingly, related agreements were cancelled and the amounts involved repaid/refunded back to the customers by M/s Chalet Hotels Pvt. Ltd. Consequently, M/s Chalet Hotels Pvt. Ltd. filed refund claims with the Department seeking refund of Service Tax paid by them in respect of such amounts collected and refunded to the customers. The details of such refund claims are given in the table below: SI. No. Name Flat No. Cancellation Date Invoice Value Tax Deposited 1. Sandeep Balla VIVBFFF0602 31.07.2017 1,77,12,724/- 4,75,205/- 2. Arjun Imtiaz and Mohammed Imtiaz VIVBFH0701 15.07.2017 2,23,39,394/- 6,57,538/- 3. N S Vinodh and Sheela Vinodh VIVBFC1101 15.07.2017 3,04,51,451/- 7,93,252/- 2.1. The refund clai .....

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they are entitled to take back credit on service not provided for any reason. He also submitted that when the service is not provided then the assessee is entitled to refund claim without limitation of Section 11B. In support of his submission, he relied upon the following decisions: Commissioner v. Madhvi Procon Pvt. Ltd. - 2015 (38) STR 74 (Tri.) Radico Khaitan Ltd. v. Commissioner - 2014 (34) STR 586 (Tri.) Wolters Kluwer India Ltd. v. CST - 2014 (36) STR 396 (Tri. Del.) Sunrays Engineers Pvt. Ltd. v. Commissioner - 2015 (318) ELT 583 (SC) Indo-Nippon Chemicals Co. Ltd. v. UOI - 2005 (185) ELT 19 (Guj.) CCE, Pune v. Ispat Profiles India Ltd. - 2007 (220) ELT 218 (Tri. Mum.) SS Agro Industries v. Commissioner of Customs, Air Cargo (Expor .....

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) Andrew Telecom (India) Pvt. Ltd. v. Commissioner of Customs & Central Excise, Goa - 2014 (34) STR 562 (Bom.) 6. After considering the submissions of both the parties and perusal of the material on record, I find that when the appellant received the advance from the buyers along with Service Tax and paid the same to the Government as Service Tax and if subsequently, the contract was cancelled between the appellant and his buyers and the appellant filed the refund claim on the ground that no service was provided and hence the provision of Section 11B of Central Excise Act is not applicable is devoid of force in view of the Larger Bench decision of the Tribunal in the case of Veer Overseas Ltd. (supra). The Larger Bench of the Tribunal i .....

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t are mainly by exercising powers under the Constitution, in writ jurisdiction. It is clear that neither the jurisdictional service tax authority nor the Tribunal has such constitutional powers for allowing refund beyond the statutory time-limit prescribed by the law. Admittedly, the amount is paid as a tax, the refund has been claimed from the jurisdictional tax authorities and necessarily such tax authorities are bound by the law governing the collection as well as refund of any tax. There is no legal mandate to direct the tax authority to act beyond the statutory powers binding on them. The Hon ble Supreme Court in Mafatlal Industries Ltd. (supra) categorically held that no claim for refund of any duty shall be entertained except in acco .....

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r Section 27(1) of the Customs Act, 1962. We also note that in Assistant Collector of Customs v. Anam Electrical Manufacturing Co. - 1997 (90) E.L.T. 260 (S.C.) referred to in the decision of the Tribunal in XL Telecom Ltd. (supra), the Hon ble Supreme Court held that the claim filed beyond the statutory time limit cannot be entertained. 9. The Apex Court in Mafatlal Industries Ltd. (supra) observed that the Central Excise Act and the Rules made thereunder including Section 11B too constitute law within the meaning of Article 265 and that in the face of the said provisions - which are exclusive in their nature no claim for refund is maintainable except and in accordance therewith. The Apex Court emphasized that the provisions of the Central .....

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