TMI Blog2019 (6) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... han provided under clauses (a) to (ec), the relevant date is the date of payment of duty. There is no dispute with regard to the fact the service tax payable by the appellant would come within the ambit of duty of excise mentioned in Section 11B(1) of the Act. However, the contention of the appellant is that the amount paid by it was actually not due from it as service tax because the value of the materials supplied free of cost by the service recipients cannot be included in computing the taxable value of the services - There is no basis for the contention raised by the learned counsel for the appellant that the amount was paid by the appellant on account of coercion and threat made by the authorities. There is no material produced in support of this contention. In the instant case, as noticed earlier, when the amount was levied from the appellant, the demand for levy was legal. The amount was paid by the appellant as service tax. The amount paid lost the colour of tax only when the issue was finally decided by the Supreme Court in COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [ 2018 (2) TMI 1325 - SUPREME COURT] to the effect that value of mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act - decided against assessee. Appeal dismissed - decided against assessee. - C. E. Appeal No. 1/2019 - - - Dated:- 20-6-2019 - MR C. K. ABDUL REHIM AND MR R. NARAYANA PISHARADI, JJ. For The Appellant : ADVS. SRI. G. JAYAPRAKASH, SMT. AMINA GOPALAKRISHNAN AND SMT. MANJU RAJAN For The Respondent : ADV. SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE AND CUSTOMS JUDGMENT R . Narayana Pisharadi, J The appellant is a private limited company. It is a registered service tax assessee. The appellant is engaged in the business of construction and in the process, providing the services known as commercial or industrial construction services, construction of residential complex services etc. These services are exigible to service tax as per the provisions of the Finance Act, 1994. 2. The dispute in the case relates to refund of an amount of ₹ 53,48,526/- paid by the appellant as service tax during the period between 27.08.2012 and 06.03.2013. 3. Short payment of service tax by the appellant was detected in the audit conducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the appellant and Sri.Sreelal N. Warriar, learned Standing Counsel for the department. 8. The main contention urged by the learned counsel for the appellant is that the period of limitation provided under Section 11B of the Act is not applicable to the refund application submitted by the appellant. Learned counsel has also contended that, even before filing the application for refund in the prescribed form, the appellant had made representation to the department for refund of the amount, stating that the amount collected from the company was not due from it. Learned counsel would also contend that the amount was paid on account of coercion and threat made by the authorities and the payment was made under protest and it cannot be treated as payment of service tax to attract Section 11B of the Act. Alternatively, learned counsel would submit that the period of limitation has to be computed from the date of judgment of the Supreme Court in Commissioner of Income Tax v. Bhayana Builders (P) Limited [ ( 2018) 3 SCC 782 ] which has given finality to the issue as to whether value of materials supplied free of cost by service recipient is exigible to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, decree, order or direction of appellate authority, Appellate Tribunal or any court, the relevant date is the date of such judgment, decree, order or direction. As per Clause (f) of Explanation (B) to Section 11B, in any case other than provided under clauses (a) to (ec), the relevant date is the date of payment of duty. 12. There is no dispute with regard to the fact the service tax payable by the appellant would come within the ambit of duty of excise mentioned in Section 11B(1) of the Act. However, the contention of the appellant is that the amount paid by it was actually not due from it as service tax because the value of the materials supplied free of cost by the service recipients cannot be included in computing the taxable value of the services. Therefore, it is contended that the amount claimed by way of refund is actually not an amount paid towards service tax and the period of limitation provided under Section 11B(1) of the Act is not applicable to the application made for refund of such amount. 13. In Bhayana Builders (supra), the Supreme Court has held that the amount of service tax charged should be for the service provided. It is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three groups or categories as follows: (1) Where a provision of the statute under which tax is levied is struck down as unconstitutional, that is, cases of unconstitutional levy (2) Where the tax is collected by the authorities under a statute by misconstruction or wrong interpretation of the provisions or by an erroneous determination of the relevant facts, that is, cases of illegal levy (3) The cases where the assessee disputes the levy and fights it out upto the first appellate or the second appellate/revisional level or the High Court and gives up the fight, being unsuccessful therein and pays the duty demanded or it is recovered from him, as the case may be and later, in another case of some other person, the Supreme Court holds that the levy of that kind is not exigible in law, that is, cases of mistake of law. The Apex Court has held that all claims for refund, arising in whatever situations (except where the provision under which the duty is levied is declared as unconstitutional), has necessarily to be filed, considered and disposed of only under and in accordance with the relevant provisions relating to refund, as they obtained from time to time. The Apex Court has hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant comes within the purview of Section 11B(1) of the Act. The first substantial question of law raised is answered against the assessee and in favour of the revenue. 20. The amount was paid by the appellant on different dates during the period between 27.08.2012 and 06.03.2013. The last date of payment was 06.03.2013. It was on 23.10.2014 the appellant filed an application dated 14.10.2014 in the prescribed form for refund of the amount. The application for refund in the prescribed form was filed beyond the period of one year from the last date of payment of duty. 21. There is a feeble plea raised by the appellant that the tax was paid under protest. The second proviso to Section 11B(1) of the Act states that the limitation of one year shall not apply where the duty is paid under protest. However, there is no material to find that the payment made was under protest. Protest made subsequently in any representation made to the department is not sufficient.. 22. Learned counsel for the appellant has pointed out that the appellant had sent a letter dated 13.09.2013 (Annexure-D) to the department claiming refund of the amount and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson to get extension of the period of limitation. We are inclined to accept this contention. A plain reading of the provision contained in Clause (ec) of Explanation (B) to Section 11B of the Act would show that the judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court mentioned therein shall be a judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court in a case between the same parties. 26. Learned counsel for the appellant has contended that the appellant is entitled to take advantage of the decision in Bhayana Builders (supra) because the proceedings initiated by it for refund of the amount had not attained finality when the decision in Bhayana Builders (supra) was rendered by the Supreme Court. But, learned Standing Counsel for the department invited our attention to certain passages in Mafatlal Industries (supra) and reiterated his contention that the assessee could not rely upon the decision in another case for the purpose of refund of the amount and that it would have to obtain a final order in its own proceedings. 27. In Mafatlal Industries (supra), the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a similar point is decided in favour of the manufacturer/assessee . Finally, the Apex Court has laid down the dictum in this regard as follows: It is not open to any person to make a refund claim on the basis of a decision of a Court or Tribunal rendered in the case of another person. He cannot also claim that the decision of the Court/Tribunal in another person's case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment or levy has become final in his case, he cannot seek to reopen it nor can he claim refund without reopening such assessment/order on the ground of a decision in another person's case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief . 29. The dictum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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