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TMI Blog2020 (3) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... em as they were not liable to pay any service tax. 2. Learned Chartered Accountant further pointed out that Revenue has sought to reject the said refund claim on the ground that appellant did not produce evidence or documentary proof that the appellant has not passed the incidence of duty to its customers. It was also alleged that the appellant has not submitted documentary evidence like Contract/MoU to establish that the service provided by the appellant is in the nature of export of service under Export of Services Rules, 2005. The refund was also sought to reject on the ground of limitation as the refund claim was filed after one year from the date of payment of service tax as specified under Section 11B of the Central Excise Act, 1944 made applicable to service tax under Section 83 of the Finance Act, 1994. Learned Chartered Accountant relied on the following decisions to assert that if any amount is paid by mistake, same cannot be treated as duty and therefore, limitation applicable relating to time-limit under Section 11B is not applicable:- (a) Hon'ble Karnataka High Court in the case of CCE (Appeals), Bangalore vs. KVR Constructions - 2012 (7) TMI - KARNATAKA HIGH COUR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount due to the department in case when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund. This was the view taken by the Tribunal in a previous decision in the case of Miles India Ltd. v. The Assistant Collector of Customs but it was assailed before this Court. The appeal was withdrawn. This Court observed that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27 of the Customs Act or Section 11B of the Central Excise Act, 1944. In the case of Collector of Central Excise, Chandigarh v. Doaba Co-operative Sugar Mills - 1988 (37) E.L.T. 478 (S.C.), the Hon'ble Apex Court held as under :- "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 thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount due to the department in case when suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court in the facts of the case held that assessee filing refund claim for past four years following a favourable decision on classification in the case of a manufacturer of similar goods, set aside the Hon'ble High Court order which directed the Assistant Commissioner to consider the claim for beyond limitation period without taking into consideration the question of limitation. Accordingly, the High Court judgment was set aside. In the case of Porcelain Electrical Manufacturing Company v. Collector of Central Excise, New Delhi - 1998 (98) E.L.T. 583 (S.C.), the Hon'ble Supreme Court held that refund claim filed before the departmental authorities to be governed by the time limit provided under the statute, general law of limitation not available. The decisions where assessee has invoked extraordinary jurisdiction of the High Courts and the Courts have applied the period of limitation of three years, the same is inapplicable to cases where the refund application has been moved before the Revenue authority. The decision in the case Escorts Limited v. UOI - 1998 (97) E.L.T. 211 (S.C.), the Hon'ble Apex Court has held that application for refund is presented before the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice tax. They have approached the jurisdictional authority of service tax for refund of the said money. It is clear that the jurisdictional service tax authority is governed by the provisions of Section 11B as the claim has been filed as per the said mandate only. Here, we have specifically asked the Learned Counsel for the appellant under what provision of law he is seeking the return of the money earlier paid. He admitted that the claim has been preferred in terms of the provisions of Section 11B. If that being the case, it cannot be said that except for limitation other provisions of Section 11B will be made applicable to the appellant. The Learned Counsel also did not advance such proposition. He repeatedly submitted that the amount is paid mistakenly. The same is not a tax and should be returned without limitation as mentioned in Section 11B. We are not convinced by such submission. 8. Here it is relevant to note that in various cases the High Courts and the Apex Court have allowed the claim of the parties for refund of money without applying the provisions of limitation under Section 11B by holding that the amount collected has no sanctity of law as the same is not a duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act, 1962. We also note that in Assistant Collector of Customs v. Anam Electrical Manufacturing Co. - 1997 (90) E.L.T. 260 (S.C.) referred to in the decision of the Tribunal in XL Telecom Ltd. (supra), the Hon'ble Supreme Court held that the claim filed beyond the statutory time limit cannot be entertained. 9. The Apex Court in Mafatlal Industries Ltd. (supra) observed that the Central Excise Act and the Rules made thereunder including Section 11B too constitute "law" within the meaning of Article 265 and that in the face of the said provisions - which are exclusive in their nature no claim for refund is maintainable except and in accordance therewith. The Apex Court emphasized that "the provisions of the Central Excise Act also constitute "law" within the meaning of Article 265 and any collection or retention of tax in accordance or pursuant to the said provisions is collection or retention under "the authority of law" within the meaning of the said Article". 10. Having examined various decided cases and the submissions of both the sides, we are of the considered view that a claim for refund of service tax is governed by the provision of Section 11B for period of l ..... 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