TMI Blog2020 (3) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... claim being barred by limitation, other issues do not remain relevant. Appeal dismissed - decided against appellant. - Service Tax Appeal No. 592 of 2011 - A/10859/2020 - Dated:- 18-3-2020 - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) AND HON BLE MR. RAJU, MEMBER (TECHNICAL) Shri Rohan Thakkar, Chartered Accountant for the Appellant Shri Sanjiv Kinker, Superintendent (AR) for the Respondent ORDER RAJU : This appeal has been filed by M/s. Comexx against rejection of refund claim filed by the appellant. 2. The appellant M/s. Comexx are an authorized agent for M/s. Zhangjiagang Kailin Trading Company Limited located in China. The appellant were registered with Service Tax Commissionerate under the category of Business Auxiliary Service. Learned Chartered Accountant appearing for the appellant pointed out that they are engaged in booking orders for its foreign principals. He pointed out that appellant receive commission for the services in convertible foreign currency. The appellants have paid service tax on the said amount received as commission. He pointed out that they are seeking refund of the said amount of service tax paid by them as they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There were decisions holding that provisions of Section 11B are not applicable to any amount which was paid by mistake or which was not payable. In these decisions the arguments forwarded was that the amount paid is not duty and Section 11B applies only to duty. It is difficult to comprehend that as to under what circumstances the provisions of Section 11B of Central Excise Act, 1944 can be invoked to claim the refund. The only provision under Central Excise Act which permits refund is Section 11B of the Act. The decisions relied by learned Chartered Accountant held that any amount which was not due to be paid or which was paid by mistake is not duty and therefore, the provisions relating to limitation under Section 11B does not apply. It needs to be noted that entire Section 11B relates to refund of duty. This issue has been examined by Hon ble Apex Court in the case of Collector of Chandigarh vs. Doaba Co-operative Sugar Mills 1988 (37) ELT 478 (SC) wherein it has been observed that:- 6. It appears that where the duty has been levied without the authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rules framed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the actual receipt quantity. Therefore, the entire amount paid by the appellant is nothing but customs duty only irrespective to the fact that certain portion of the duty was not payable. Under the Customs Act, any amount which is refundable has to pass the test provided under Section 27 of the Customs Act, 1962. In the said Act, there is no other provisions made for refund of any amount which was paid either without authority of law or was not payable for any reason. Therefore, all the refund claims under the Customs Act has to be dealt with under the provisions of Section 27. The departmental authority has no legal authority to process and sanction the refunds going out of Section 27 of the Customs Act, 1962. Therefore, the Customs authorities have to process and dispose the refunds only and only under Section 27 of the Customs Act, 1962. Though in the identical facts, the Hon ble Bombay High Court in the judgment cited by Ld. Counsel, in case of refund, in respect of duty paid on short imported goods held that limitation under Section 27 is not applicable. However, the Hon ble Supreme Court in various judgments held that all the refund claims of customs and excise has to be gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal authority, limitation provided under Customs/Central Excise Act shall be applicable. The Hon ble Supreme Court has held that authorities functioning under an Act is bound by its provisions and any refund proceedings beyond the limitation provided under the Customs/Central Excise Act, the same can be initiated in the Civil Court. Accordingly, the time limit under the Customs Act is applicable. We are also of the view that the Tribunal being creature of the statute and under Customs Act have to deal with any refund case within four corners of the Customs Act, since the provisions for refund is only provided under Section 27 of the Customs Act, 1962. This Tribunal also cannot by-pass the same and decide the refund claims under general law. The Hon ble Supreme Court in a land- mark judgment in the case of Mafatlal Industries Limited v. UOI - 1997 (89) E.L.T. 247 (S.C.) has endorsed the aforesaid judgment in the case of Doaba Co-operative Sugar Mills (supra). In the case of UOI v. Namdang Tea Estate - 2004 (164) E.L.T. 132 (S.C.), the Hon ble Supreme Court held that claim filed beyond the stipulated time is not admissible. In the case of UOI v. VIP Industries Limited - 1998 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise the inherent power provided in it but the said power cannot be enjoyed by the Tribunal. In the case of Paros Electronics Pvt. Limited v. UOI - 1996 (83) E.L.T. 261 (S.C.), the Hon ble Supreme Court held that customs authorities cannot grant refund, being a creation of statute they are bound by limitation of Section 27 of the Customs Act. 5. On the analysis of above judgments of Hon ble Supreme Court, the gist is that any refund filed before the Customs/Central Excise authorities can only process the claim under Customs/Central Excise Acts and the departmental authorities have no jurisdiction to go beyond the provisions made under the Act and limitations provided under Section 27/Section 11B. 5. A similar view has also been given by Larger Bench of the Tribunal in the case of Veer Overseas Limited vs. CCE, Panchkula 2018 (15) GSTL 59 (Tri. LB). In the said decision, in Para 8 and 9 the Larger Bench examined the decisions of various Courts where Section 11B has been held to be not applicable to refund of any amount made under any mistake of law. The Larger Bench, after examining the said issue, has come to the following conclusion:- 7. What is crucial is tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the duty has been levied is found to be unconstitutional for violation of any of the constitutional limitations. This is a situation not contemplated by the Act. We note in the present case there is no such situation of the provision of any tax levy, in so far as the present dispute is concerned, held to be unconstitutional. As already held that the appellant is liable to pay service tax on reverse charge basis but for the exemption which was not availed by them. We hold that the decision of the Tribunal in Monnet International Ltd. (supra) has no application to decide the dispute in the present referred case. We take note of the decision of the Tribunal in XL Telecom Ltd. (supra). It had examined the legal implication with reference to the limitation applicable under Section 11B. We also note that the said ratio has been consistently followed by the Tribunal in various decisions. In fact, one such decision reached Hon ble Supreme Court in Miles India Limited v. Assistant Collector of Customs - 1987 (30) E.L.T. 641 (S.C.). The Apex Court upheld the decision of the Tribunal to the effect that the jurisdictional customs authorities are right in disallowing the refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
