TMI Blog2019 (7) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri S.B. Mane, Assistant Commissioner, Authorised Representative for the Respondent ORDER PER: AJAY SHARMA This Appeal has been filed against the order dated 27/03/2018 passed by the Commissioner of GST Central Excise (Appeals-III), Mumbai in Order-in-Appeal No. NA/GST-A-III/MUM/561/17-18. 2. The issue to be decided is whether the refund of Cenvat credit claimed by the Appellant is beyond the limitation period as prescribed under Section 11B of the Central Excise Act, 1944 as applicable to Service Tax vide Section 83 of the Finance Act, 1994? 3. The facts involved in the Appeal are as follows. The Appellants are providing Erection, Commissioning and Installation Service. They filed two refund claims on 14.2.2014 total amounting to ₹ 1,25,147/- (₹ 67,041/- + ₹ 58,106/-) for the period 8.10.2012 and 8.1.2013 under 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant s own case, for a different period, the refund claim was upheld by another Commissioner. He placed reliance on the following case laws in support of his submissions:- (i) CCE (Appeals), Bangalore vs. KVR Construction; 2012(7) TMI 22(Kar.); (ii) M/s. Parijat Construction, M/s. Giriraj Construction vs. CCE; 2017(10) TMI 659(Bom.); (iii) Pallavapuram Tambaram MSW P. Ltd. vs. CST, Mumbai-ii; 2018(6) TMI 1487 (Tri-Mum); (iv) M/s. Jain Irrigation Systems Ltd. vs. CCE, Nashik; 2015(9) TMI 688 (Tri-Mum). Per contra learned Authorised Representative reiterated the findings recorded in the impugned order and submitted that the learned Commissioner has rightly relied upon the decision of the Hon ble Supreme Court in the matter of Anam Electrical (supra). He also relied upon the decision of the Hon ble Supreme Court in the matter of Mafatlal Industries (supra) and submitted that no claim for refund of any duty as filed by the Appellants shall 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal is creature of statute and cannot excise such sweeping powers which are bestowed upon the Constitutional Courts. In the matter of Miles India Ltd v. Assistant Commissioner, Customs; 1987(30)E.L.T.641 the Hon ble Supreme Court has held that the authorities under a statute are bound by the period of limitation provided under that statute. 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) has categorically held that no claim for refund of any duty shall be entertained except in accordance with the provisions of the statute. Every claim for refund of excise duty can be made only under and in accordance with Section 11B 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certainly have due regard to the provisions of the said Act and would exercise their jurisdiction consistent with the provisions of the Act. It was held that the writ petition would be considered and disposed of in the light of and in accordance with the provisions of Section 11B for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. 8. Similarly, the Principle Bench of the Tribunal in the matter of CCE, Raipur vs. Manorath Builders (P) Ltd.; 2010(18) STR 453(Tri.-Del.) while dealing with a similar issue, while allowing the Appeal filed by Revenue held as under:- 3.1 There is no dispute about the fact that the respondent had, on their own, obtained service tax registration for payment of service tax on their activity by treating the same as taxable service under Section 65(105)(zzzh) read with Sections 65(30A) and 65(91A) and during the period from March, 2006 to September, 2006, the tax was paid by them without any protest. It is only after issue of the Board s Circular on 23-8-07 that they became aware that their activity is not taxable and they filed refund claim on 13-9-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statutory time limit of one year, therefore in my view the learned Commissioner was justified in rejecting the Appeal filed by the Appellant. While dealing the argument raised by the Appellant that in similar circumstances in Appellant s own case, for a different period, the refund claim was upheld by the another Commissioner, the learned Commissioner herein in the impugned order held as under:- 6. The appellants have submitted a copy of the O-I-A No. PK/310/MC/2017 dated 30.11.2017 issued on 06.12.2017, of the Commissioner(Appeals-II), Mumbai which was filed by the appellants against O-I-O RN/R-50/2015 dated 19.02.2015. The issue under consideration before the Hon ble Commissioner (Appeals-II) in the said case was:- (1) Whether the appellants had paid the amount of ₹ 12,582/- as service tax and shown the same in the relevant return and whether the services provided to MCGM BARC were exempted. Whether the said service tax paid by the appellants was actually related to the services provided to Government authority vide the bills submitted by them. (2) Whether the appellants had filed their claim supported by sufficient documentation and were eligible fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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