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TMI Blog2019 (7) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 11B of the Central Excise Act, 1944. Upon examination of claims it was noticed that the claim for the period 8.10.2012 should have been filed on or before 7.10.2013 whereas the other claim dated 8.1.2013 should have been filed on or before 7.1.2014 in view of Section 11B ibid as made applicable to Service Tax by virtue of Section 83 of the Finance Act, 1994. Since admittedly both the claims were filed on 14.2.2014, which is more than one year from the date of payment of duty, therefore a show cause notice dated 25.7.2014 was issued as to why the aforesaid refund claims should not be rejected being time barred. The Adjudicating Authority vide Order-in-Original dated 30.12.2014 rejected the refund claims being time barred and the said order was upheld by the first Appellate Authority i.e. the Commissioner vide impugned order dated 24.5.2018. 4. I have heard learned Chartered Accountant for the Appellant and learned Authorised Representative for the Revenue and perused the records. The learned Chartered Accountant submitted that the Appellants provided the service in issue to (i) Department of Atomic Energy, Government of India; and (ii) Municipal Corporation of Greater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be entertained except in accordance with the provision of Section 11B as filed by the Appellants. He further submitted that the refund claim beyond the limitation period of one year has rightly been rejected by the authorities below. 5. I have carefully considered the rival submissions as well as the decisions cited by both the sides. One of the important aspect of the matter is that the amount paid by the appellant has been deposited under a proper service tax head of account through four payment challans. The said amount has been appropriated by the Government as service tax. Later, the appellant realized that the services were exempt by a notification. Section 11B of the Central Excise Act, 1944 made applicable to service tax refund clearly stipulates that any person claiming refund of any duty of excise to make an application for refund of such duty to the Assistant 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 as the applicant may furnish to establish that the amount of duty of excise in relation to which said re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the forms provided by the Act. The only exception is where the provision of the Act whereunder the duty has been levied, is found to be unconstitutional for violation of any of the constitutional limitations. 6. Pursuant to the directions given in Mafatlal Industries case (supra), the Hon'ble Supreme Court in the matter of Anam Electrical (supra) while disposing of the Appeals/Special Leave Petitions has held as under: "(1) Where a refund application was filed by the manufacturer/purchaser beyond the period prescribed by the Central Excise Act/Customs Act in that behalf, such petition must be held to be untenable in law. Even if in any appeal, suit or writ petition, direction has been given that the refund application shall be considered with reference to the period of limitation prescribed in the Central Excise Act/Customs Act - or that the period of limitation shall be taken as three years - such a direction of the Appellant Court/Civil Court/High Court shall be deemed to be unsustainable in law and such direction shall be set aside. The period prescribed by the Central Excise Act/Customs Act for filing a refund application in the case of "illegal levy" cannot be extende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d they filed refund claim on 13-9-07. The refund claim, has obviously, been filed after on expiry of period of one year from the date of payment of service tax. Hon'ble Delhi High Court in the case of Jumax Foam Pvt. Ltd. v. U.O.I. (supra) relying upon Hon'ble Supreme Court's judgment in the case of Mafatlal Industries Ltd. v. U.O.I. (supra) and Assistant Collector of Customs and Others v. Anam Electrical Manufacturing Co. and Others (supra) has held that even if some, tax is collected by the authorities under the Act by misinterpreting or misapplying any of the rules, regulations or notifications or erroneous determination of relevant facts, the same may be called an illegal levy, however, for the refund of such amount, though illegally collected, a claim has to be necessarily preferred under and in accordance with the respective enactments before the authorities prescribed thereunder and within the period of limitation prescribed therein. In view of this, I hold that the limitation prescribed under Section 11B, made applicable to the service tax by virtue of Section 83 of the Finance Act, 1994, would be applicable and since in this case, there is no dispute about the fact that re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts or otherwise. The Ld. Commissioner examined the Work completion certificate of MCGM & BARC, Appellants' bank statements dated 31.03.2013 which specified that the disputed amounts were neither charged by the appellant nor received from the Recipients of Service in respect of the services rendered and other documents related to the refund claim. Further, he observed that the application for refund had been filed within one year from the relevant date and therefore the claimant had satisfied the conditions of Section 11B of the Act. On the basis of the said observation, the appeal was decided in favour of the appellants. However, in the impugned order dated 24.12.2014, against which subject appeal has been filed before me, the refund claims have been rejected by the original adjudicating authority as being time-barred." After going through the order passed by the another Commissioner for the different period in Appellant's own case, I completely agree with the above observations of the learned Commissioner in the impugned order and in my view there is no infirmity in the aforesaid observation made by the learned Commissioner while rejecting this submission of the Appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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