TMI Blog2019 (8) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... ities. From a bare perusal of Section 11B of the Act, 1944 it is clear that an application for refund has to be made within a period of one year from the relevant date. The appellant made an application for refund on 21/04/2012 for the refund of Service Tax deposited for the financial year 2009-10 and 2011-12 (April June). The application for refund of Service Tax having been moved beyond the period of limitation prescribed, was rightly rejected and further the appellant had himself conceded before the CESTAT that Service Tax was not deposited under protest nor was there any provisional assessment. Even otherwise, the application for refund should have been moved within a period of one year, which was admittedly moved beyond the stipulated period. As already held by the Apex Court the application moved beyond the statutory period prescribed in Section 11-B of the Act, 1944, would be time barred and the claim of the appellant could not have been admissible on this score also. Appeal dismissed. - Central Excise Appeal No. - 21 of 2019, 22 of 2019 - - - Dated:- 21-8-2019 - Devendra Kumar Upadhyaya, And Alok Mathur JJ. For the Appellant : Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 85 of the Finance Act, 1994 stating that the refund pertains to the period commencing from 06/01/2010 and the refund claim is not barred by time in as much as the limitation of one year is applicable only for the cases where excess payment of tax or the credit has not been utilised, and in the present case the amount of Service Tax was deposited under the instructions of the Department, under protest. 8. It was further submitted that the tax has been deposited by the appellant from its own pocket and therefore there was no question of passing the burden of Service Tax on anyone else, and hence the refund could not have been refused on the ground of unjust enrichment. 9. The Commissioner (Appeals) by means of his order dated 20/08/2014 rejected the appeal of the appellant by holding that Service Tax can validly be imposed upon the logistic charges collected by the appellant , and consequently, the question of refund did not arise in light of the fact that the Service Tax was levied correctly. 10. The appellant had claimed the refund of Service Tax on account of the fact that the Department of Commercial Tax had imposed VAT o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. It is relevant to refer to the order of the Commissioner (Appeals) Customs, Central Excise and Service Tax, Lucknow dated 20/08/2014 wherein he has considered the question as to whether logistic charges are amenable to Service Tax, and has observed that the appellant started payment of Service Tax on logistic charges under the category of business auxiliary service in the financial year 2009-10 and has accepted the tax liability on the said charges. In the meanwhile the VAT authorities have decided the issue by holding that actual nature of logistic charges should be classified as goods on which tax leviable as logistic charges are incurred before sale of goods and are therefore considered as part of sale price. It was further considered that the applicant himself has not accepted the order of the VAT authorities and has challenged the order before the High Court. The appellant is in the business of selling cars, and in addition to the amounts shown in the sale invoice, was also charging an amount ₹ 5000/- as logistic charges in lieu of transportation/delivery of car at the doorstep of the buyer. It was in light of the above fact that the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the judgment concluded that the same would depend upon the intention of the parties. But we are not called upon to adjudicate this issue in the present case in as much as only the question of refund of Service Tax has been raised by the appellant on the ground that VAT has already been levied by the Commercial Tax Authorities. 21. Section 11B of the Act, 1944 provides for refund of Service Tax, which is quoted herein below : SECTION 11B. Claim for refund of [duty and interest, if any, paid on such duty . - (1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] may make an application for refund of such [duty and interest, if any, paid on such duty] to the [Assistant Commissioner of Central Excise or Deputy 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 (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of [duty of excise and interest, if any, paid on such duty] in relation to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hy/Madurai, AIR 2019 SC 1069 has observed as under :- 11. It is not disputed that the excise duty was paid by the manufacturer (M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in Fenner India's case (supra) and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time. The appellant herein is the buyer and purchased conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20th July, 1988 to 15th January, 1994 indicated in Civil Appeal No. 7625 of 2005. The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act. 12. Section 11B deals with the claim of refund of duty as paid on his own accord by any person for refund of such duty to the competent authority before the expiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rden of duty to its dealers. 14. It may be appropriate to notice that the view earlier expressed by the two-Judge Bench of this Court in National Winderv. Commissioner of Central Excise, Allahabad, (2003) 11 SCC 361 was held to be per incuriam in Commissioner of Central Excise, Mumbai- II v. Allied Photographics India Ltd. case (supra). 15. In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for in view of the judgment of this Court in Commissioner of Central Excise, Mumbai- II v. Allied Photographics India Ltd. case (supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944. 16. In our considered view, the appeals are without substance and deserve to be rejected. Consequently, the appeals fail and are accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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