TMI Blog2022 (2) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the Appellant was self assessing his tax liability and reflecting the same in the ST-3 returns filed by them with the department. Nothing has been brought on record to show that appellant has sought modification of the self assessed return by way of an appeal to Commissioner (Appeals) - the refund claim filed by the Appellant is not maintainable. Time limitation - HELD THAT:- It is quite evident that in the event were the refund claim has been made under the provisions of the Section 11B of the Central Excise Act, 1944, the period of limitation as provided by the said section will come into play, and refund claim needs to be examined for limitation as per the period of limitation laid down thereunder - Undisputedly CESTAT is the statutory body created under the provisions of the Act, and is not having any extraordinary jurisdiction as conferred by Article 226 of the Constitution - this issue has been considered in detail by the larger bench in case of M/S VEER OVERSEAS LTD. VERSUS CCE, PANCHKULA [ 2018 (4) TMI 910 - CESTAT CHANDIGARH] and by majority view it was held that the refund claim will have to be considered only if filed within the period of limitation as provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Period Involved Amount of Refund Rejected (Rs) Shree Balaji Warehouse V P O Bichpari, Tehsil Barapara, Hisar 62/ST/R/2017- 18 dated 23.01.2018 21.09.2017 April 2014 to September 2016 36,91,475/- Om Shree Sai Ram Warehouse H No 139 Friends Colony Hisar 58/ST/R/2017- 18 dated 10.01.2018 06.09.2017 June 2015 to July 2016 51,62,039/- Staya Warehouse H No 178/4 Lajpat Nagar Hisar 59/ST/R/2017- 18 dated 31.12.2017 06.09.2017 April 2014 to June 2016 1,06,60,581/- 2.1 All the three appellants are registered with Service Tax department for rendering taxable services. They filed the refund claims, as detailed above, stating that they: were providing storage and warehousing services to Food Corporation of India ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was subject matter of confusion/disagreement between my client and HAFED/FCI during the period of deposition of duty. HAFED/FCI paid the duty mistakenly to my client and my client deposited it to department mistakenly. Mistake was genuine and common in nature which is expected from a person in common parlance. Service Tax was not applicable in case of Lease and Storage Services but was applicable in case of Lease only services . In case of M/s Awla Infra, Hon ble Punjab and Haryana High Court has on the same issue accepted that duty paid by Awla Infra as wrongly paid Service Tax , as per the facts and circumstances of the case. As held by the Hon ble High Court, in case of wrongly Paid Service Tax, the provision of 11-B should not be invoked. Considering Financial Issue involved in all three cases are Approx ₹ 2 Crore appellants are suffering financial hardship due to interest Assistant commissioner vide his order in original No 05/ST/R/HSR/2020-21 dated 27.11.2020 in case of Shree Balaji Warehouse, there was no Unjust Enrichment and burden thereof was not passed on anyone. In case department feels any issue regarding storage of agriculture commodity, they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of larger bench in the case of Veer Overseas Ltd [2018 (15) GSTL 59 (Tri. LB)], against the appellants. beyond doubt that the appellants had collected due service tax from the service receiver which was deposited with the department. Though, the same service tax was later on deducted by HAFED from the appellant but this is a transaction between two parties and not a subject matter for Service Tax department. 4.1 We have considered the impugned order along with the submissions made in appeals, during the course of arguments and in the written submissions filed. Maintainability of the Refund Claim 4.2 Appellant in the present case has paid certain amounts as service tax in respect of taxable services provided by him to HAFED/ FCI. Undisputedly appellant has throughout collected this amount paid by him as service tax leviable/ due in respect of these taxable services from the service recipient. Subsequently on the basis of certain legal opinion obtained by M/s FCI, on realizing that these services fall within the negative list, appellant has filed this refund claim. 4.3 Undisputedly the refund claim has been filed by the Appellant on the basis of the legal opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before Finance Bill received the assent of the President, it is deemed to be filed under the provision of Section 27(1) as existed and to be dealt with under Section 27(2). The period of limitation of one year provided by the provisions of Section 27 has to be computed in the case of goods which are exempt from payment of duty by a special order issued under Section 25(2) from the date of issue of such an order as provided in Section 27(1B)(a). Where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any Court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction. It is provided in Section 27(1B)(c) that where any duty is paid provisionally under Section 18, the limitation of one year shall be computed from the date of adjustment of duty after the final assessment thereof or in the case of re- assessment, from the date of such re-assessment. The second proviso to Section 27 makes it clear that limitation of 1 year shall not apply where any duty or interest has been paid under protest. 37. Under Section 27(2)(a) it is incumbent upon the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be countenanced. The view was taken by us also gains support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that whereas a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act. Therefore, if an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for the refund which, if we may term it so, is in the nature of execution of a decree/order. In the case at hand, it was specifically mentioned in the order of the Assistant Collector that the assessee may file an appeal against the order before the Collector (Appeals) if so advised. (emphasis supplied) 40. In Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) - 2004 (172) E.L.T. 145 (S.C.) = (2005) 10 SCC 433, the Court considered unamended provision of Section 27 of the Customs Act and a similar submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals)]. - (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a [Principal Commissioner of Customs or Commissioner of Customs] may appeal to the [Commissioner (Appeals)] [within sixty days] from the date of the communication to him of such decision or order : [Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf. 43. As the order of self-assessment is nonetheless an assessment order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India - 2009 (240) E.L.T. 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra). 45. Reliance was also placed on a decision of Rajasthan High Court with respect to service tax in Central Office Mewar Palace Org. v. Union of India - 2008 (12) S.T.R. 545 (Raj.). In view of the aforesaid discussion, we are not inclined to accept the reasoning adopted by the High Court, that too is also not under the provisions of the Customs Act. 4.5 Argument is often advanced, that this decision of Hon ble Apex Court is not applicable to the cases of refund of Service Tax. However we are not in position to agree with the said argument, as in para 45, Hon ble Apex Court has clearly shown its disagreement with the reasoning adopted by the Hon ble Rajasthan High Court in the case of Central Office Mewar Palace Org, which was the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Tax, and no refund claim could have been filed without the modification of self assessed returns filed by the Appellant, in an appellate proceedings 4.7 In their written submissions and during course of hearing appellant counsel argued vehemently that in case of Punjab State Warehousing Corpn [2018 (15) GSTL 282 (T-Chand)], that service tax is not payable on storage and warehousing, which has been exempted as per section 65 (105) (zza). The appellant claim that the refund claim becomes due to them in terms of this decision, as the tax paid by them was paid by them under an erroneous understanding or mistake of law. He also relies upon the decision in case of Awla Infra vs Punjab [2019-TIOL-2933- HC-P H-ST]. 4.8 This argument made by the appellant, too cannot be sustained in view of the observations made by the Hon ble Supreme Court in case of Mafatlal Industries [1997 (89) ELT 247 (SC)] as follows: 68. Re. : (I) : Hereinbefore, we have referred to the provisions relating to refund obtaining from time to time under the Central Excises and Salt Act. Whether it is Rule 11 (as it stood from time to time) or Section 11B (as it obtained before 1991 or subsequent thereto), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phasised in Para 14, and has to be respected so long as it stands. The validity of these provisions has never been seriously doubted. Even though in certain writ petitions now before us, validity of the 1991 (Amendment) Act including the amended Section 11B is questioned, no specific reasons have been assigned why a provision of the nature of sub-section (3) of Section 11B (amended) is unconstitutional. Applying the propositions enunciated by a seven-Judge Bench of this Court in Kamala Mills, it must be held that Section 11B [both before and after amendment] is valid and constitutional. In Kamala Mills, this Court upheld the constitutional validity of Section 20 of the Bombay Sales Tax Act (set out hereinbefore) on the ground that the Bombay Act contained adequate provisions for refund, for appeal, revision, rectification of mistake and for condonation of delay in filing appeal/revision. The Court pointed out that had the Bombay Act not provided these remedies and yet barred the resort to civil court, the constitutionality of Section 20 may have been in serious doubt, but since it does provide such remedies, its validity was beyond challenge. To repeat - and it is necessary to do s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11/Section 11B, at all points of time, it must be held that any and every ground including the violation of the principles of natural justice and infraction of fundamental principles of judicial procedure can be urged in these appeals, obviating the necessity of a suit or a writ petition in matters relating to refund. Once the constitutionality of the provisions of the Act including the provisions relating to refund is beyond question, they constitute law within the meaning of Article 265 of the Constitution. lt follows that any action taken under and in accordance with the said provisions would be an action taken under the authority of law , within the meaning of Article 265. In the face of the express provision which expressly declares that no claim for refund of any duty shall be entertained except in accordance with the said provision, it is not permissible to resort to Section 72 of the Contract Act to do precisely that which is expressly prohibited by the said provisions. In other words, it is not permissible to claim refund by invoking Section 72 as a separate and independent remedy when such a course is expressly barred by the provisions in the Act, viz., Rule 11 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les 38 and 39 - an aspect dealt with at some length at a later stage. The very concept of economic justice means and demands that unless the claimant (for refund) establishes that he has not passed on the burden of the duty/tax to others, he has no just claim for refund. It would be a parody of economic justice to refund the duty to a claimant who has already collected the said amount from his buyers. The refund should really be made to the persons who have actually borne its burden - that would be economic justice. Conferring an unwarranted and unmerited monetary benefit upon an individual is the very anti-thesis of the concept of economic justice and the principles underlying Articles 38 and 39. Now, the right to refund arising as a result of declaration of unconstitutionality of a provision of the enactment can also be looked at as a statutory right of restitution. It can be said in such a case that the tax paid has been paid under a mistake of law which mistake of law was discovered by the manufacturer/assessee on the declaration of invalidity of the provision by the court. Section 72 of the Contract Act may be attracted to such a case and a claim for refund of tax on this scor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation Act, 1963, the period of limitation for making such a claim for refund, whether by way of a suit or by way of a writ petition, is three years from the date of discovery of such mistake of law? Kanhaiyalal is understood as saying that such a course is permissible. Later decisions commencing from Bhailal Bhai have held that the period of limitation in such cases is three years from the date of discovery of the mistake of law. With the greatest respect to the learned Judges who said so, we find ourselves unable to agree with the said proposition. Acceptance of the said proposition would do violence to several well-accepted concepts of law. One of the important principles of law, based upon public policy, is the sanctity attaching to the finality of any proceeding, be it a suit or any other proceeding. Where a duty has been collected under a particular order which has become final, the refund of that duty cannot be claimed unless the order (whether it is an order of assessment, adjudication or any other order under which the duty is paid) is set aside according to law. So long as that order stands, the duty cannot be recovered back nor can any claim for its refund be ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sections 11A and 11B . As held by a seven - Judge Bench in Kamala Mills, following the principles enunciated in Firm Illuri Subbaiya Chetty, the words any assessment made under this Act are wide enough to cover all assessments made by the appropriate authorities under the Act whether the assessments are correct or not and that the words an assessment made cannot mean an assessment properly and correctly made. It was also pointed out in the said decision that the provisions of the Bombay Sales Tax Act clearly indicate that all questions pertaining to the liability of the dealer to pay assessment in respect of their transactions are expressly left to be decided by the appropriate authorities under the Act as matters falling within their jurisdiction. Whether or not a return is correct and whether a transaction is exigible to tax or not are all matters to be determined by the authorities under the Act. The argument that the finding of the authority that a particular transaction is taxable under the Act is a finding on a collateral fact and, therefore, resort to civil court is open, was expressly rejected and it was affirmed that the whole activity of assessment beginning w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provide for this. We are, therefore, of the clear and considered opinion that the theory of mistake of law and the consequent period of limitation of three years from the date of discovery of such mistake of law cannot be invoked by an assessee taking advantage of the decision in another assessee‟s case. All claims for refund ought to be, and ought to have been, filed only under and in accordance with Rule 11/Section 11B and under no other provision and in no other forum. An assessee must succeed or fail in his own proceedings and the finality of the proceedings in his own case cannot be ignored and refund ordered in his favour just because in another assessee‟s case, a similar point is decided in favour of the manufacturer/assessee. (See the pertinent observations of Hidayatullah, CJ. in Tilokchand Motichand extracted in Para 37) . The decisions of this Court saying to the contrary must be held to have been decided wrongly and are accordingly overruled herewith. 4.9 Thus the refund claim filed by the Appellant on the basis of the legal opinion obtained by FCI or the decision of tribunal in case of Punjab Warehousing Corpn Ltd., itself is not maintainable. Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption notification which is being sought at a late stage. The service tax being valid non utilization of exemption cannot be termed as invalid or ultra vires. The instant claim has not arisen out of any tax or law governing tax being held as an unconstitutional levy. However, the facts of the instant case evince that, the appellant by an oversight paid Tax on an exempted output service provided by them for which they had an ample time of one year from the date of issuance of exemption notification for filing of the refund claim or adjust the same against other output service. The appellant thus failed to avail the available remedies as provided under the relevant provisions as discussed above. [emphasis supplied] 15. The decisions relied upon by learned Counsel for the Appellant and the learned Authorized Representative need to be examined. 16. In Doaba Co-operative Sugar Mills, the Supreme Court observed : 6 .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 aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority is to be made within the four corners of the statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder. 7. This court is of the opinion that the CESTAT clearly fell into error. In the present case, levy never applied - a fact conceded by no less than the authority of CBEC .Consequently, the appeal has to succeed and is therefore allowed. The appellant shall be entitled to refund of entire amount with proportionate interest. [emphasis supplied] 18. In Commissioner of Central Excise (Appeals), Bangalore vs KVR Construction 2012 (26) STR 195 (Kr.) = 2010-TIOL-980 - HC-KAR-ST, service tax was paid by the assessee under a mistaken notion that it was liable to pay, though it was not liable to pay by virtue of a Circular dated 17 September, 2004 and, accordingly, a refund was sought. The Karnataka High Court examined whether section 11-B of the Excise Act would be applicable if the amount was paid under a mistaken impression that it was liable to be paid. The High Court found that section 11-B of the Excise Act refers to a claim for refund of duty of excise only and does not refer to any other amount collected w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent will neither validate the nature of payment nor the nature of transaction. In other words, mere payment of amount would not make it a service tax payable by them. When once there is lack of authority to demand service tax from the respondent company, the department lacks authority to levy and collect such amount. Therefore, it would go beyond their purview to collect such amount. When once there is lack of authority to collect such service tax by the appellant, it would not give them the authority to retain the amount paid by the petitioner, which was initially not payable by them. Therefore, mere nomenclature will not be an embargo on the right of the petitioner to demand refund of payment made by them under mistaken notion. xxxxxx xxxxxx xxxxxx 23. Now we are faced with a similar situation where the claim of the respondent/assessee is on the ground that they have paid the amount by mistake and therefore they are entitled for the refund of the said amount. If we consider this payment as service tax and duty payable, automatically, Section 11B would be applicable. When once there was no compulsion or duty cast to pay this service tax, the amount of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oneous in that it applies the limitation prescribed under Section 11B of the Act to the present case were admittedly appellant had paid a Service Tax on Commercial or Industrial Construction Service even though such service is not leviable to service tax. We are of the view that the decisions relied upon by the Appellate Tribunal do not support the case of the respondent in rejecting the refund claim on the ground that it was barred by limitation. We are, therefore, of the view that the impugned order is unsustainable. [emphasis supplied] 22. The Kerala High Court in Geojit BNP Paribas Financial Services Ltd. vs CCE, Cus ST, Kochi 2015 (39) STR 706 (Ker.) = 2015-TIOL-1602-HC-KERALA-ST also held that when levy is not in accordance with the provisions of the Act, such payment cannot be taken as payment made relatable to section 11-B of the Excise Act and, therefore, refund has to be allowed. The observations are as follows : 8. The learned counsel for the Department, relying on the judgment of the Hon'ble Supreme Court in Mafatlal Industries Ltd. and Others v. Union of India and Others [(1997) 5 SCC 536 = 1997 (89) E.L.T. 247 (S.C.)] = 2002-TIOL-54-SC-CX-CB wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee, the same cannot be retained by the Union of India under the one or other pretext when a service provider is not liable to make payment of the service tax and if any payment is made, it cannot be covered under Section 11B of the Central Excise Act to be read with Section 83 of the Finance Act, 1994. 24. Learned Authorised Representative of the Department has, however, placed reliance upon decision of a Larger Bench of the Tribunal in Veer Overseas Ltd. that was decided on 27 March, 2018. In this case, claims for refund were rejected by the authority on the ground that they were barred by limitation under section 11-B of the Excise Act. The issue before the Larger Bench was as to whether in respect of a claim for refund of illegal levy of service tax or service tax collected without authority of law, the statutory limit prescribed in section 11-B of the Excise Act would be applicable. Two Learned Members of the Bench, after referring to the provisions of section 11-B of the Excise Act, observed as follows : 7. What is crucial is that the appellants paid the claimed amount as service tax. They have approached the jurisdictional authority of service tax for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. [emphasis supplied] 25. The third Member, however, after placing reliance on the decision of the Bombay High Court in Parijat Construction, allowed the refund claim holding that the time limit prescribed under section 11-B of the Excise Act would not be applicable since that was not rendered in a Writ Petition but in an Central Excise Appeal and the observations are as follows : 15.............As the Hon'ble High Court of Bombay has entertained the refund claim in Central Excise Appeals but not exercising writ jurisdiction power granted to the Hon'ble High Court under Constitution of India and allowed the refund claim holding that time limit prescribed under Section 11B of the Act is not applicable and the decision of Hon'ble Bombay High Court in Central Excise Appeals is binding on this Tribunal. Therefore, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench held that it would be impracticable for the authorities to allow refund applications that are filed beyond time, even if it is paid under a mistake of law. 30. As noticed above, the Madras High Court subsequently, in the decision rendered on 28 June, 2018 in M/s 3E Infotech, held that when service tax is paid mistakenly, a claim for refund cannot be barred by limitation under section 11-B of the Excise Act. 31. In any view of the matter, the Delhi High Court in M/s National Institute of Public Finance Policy clearly held that if service tax was not leviable, but it was paid by mistake, the amount had to be refunded. The Kerala High Court also pointed out that the distinguishing feature for attracting the provisions under section 11B is that the levy should have the colour of validity when it was paid and only consequent upon interpretation of law or adjudication, the levy is liable to be ordered as refund. When payment was effected, if it has no colour of legality, section 11B is not attracted. 32. In Collector of Central Excise, Chandigarh vs Kashmir Conductors 1997 (96) ELT 257 (Tri.) = 2002-TIOL-353 -CESTAT- DEL-LB , a Larger Bench of the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistakenly by the Appellant, the provisions of section 11-B of the Excise Act relating to limitation would not be applicable. In the instant case, the Commissioner (Appeals) has rejected the refund claim of the Appellant only for the reason that it was made beyond a period of one year from the date of payment of duty. 4.12 Hon ble Supreme Court has in case of Porcelain Electrical Mfg Co [1998 (98) ELT 583 (SC)], on the same issue has held as follows: The question that arises for consideration in these appeals directed against the order of Customs, Excise Gold (Control) Appellate Tribunal, New Delhi is whether the Tribunal was justified in rejecting the claim for refund for the period it was beyond six months from the date the duty was paid. 2. Various items of porcelain manufactured by the appellant for use as components of insulating device was assessed to duty under Tariff Item 23B-CET. In English Electric Co. of India Ltd. v. Superintendent, Central Excise Ors., 1979 (4) E.L.T. (J 36), the Madras High Court held that such items were not dutiable under Item 23B. It is not disputed that this decision has been upheld by this Court. The appellant, therefore, on 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Authorities functioning under the Act are bound by the provisions of the Act. 5. Since the appellant had filed an application under Rule 11 read with Rule 173J and sought its remedy under the Statute it was bound by the limitation provided under the Act and the Rules. It was not open to the appellant to claim that even though the period of limitation was provided under the Statute for refund the application filed by it should be processed and considered under the general law of limitation. 4.13 From the decision rendered by the Hon ble Supreme Court as above, it is quite evident that in the event were the refund claim has been made under the provisions of the Section 11B of the Central Excise Act, 1944, the period of limitation as provided by the said section will come into play, and refund claim needs to be examined for limitation as per the period of limitation laid down thereunder. Hon ble Supreme Court has made the distinction between the statutory authorities created and functioning in terms of the Central Excise Act, 1944 and the courts having extraordinary jurisdiction under Article 226 of the Constitution. Undisputedly CESTAT is the statutory body created un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding the places at which the Benches shall hold their sittings. Sub-sections (7) and (8) of this section provide that the Tribunal shall, for certain specific purposes, be deemed to be a civil court. 8. There is no doubt that the Tribunal functions as a court within the limits of its jurisdiction. It has all the powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers. Certain powers are recognised as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised. The powers of the Tribunal are no doubt limited. Its area of jurisdiction is clearly defined, but within the bounds of its jurisdiction, it has all the powers expressly and impliedly granted. The implied grant is, of course, limited by the express grant and, therefore, it can only be such powers as are truly incidental and ancillary for doing all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement with the position of law as stated by the tribunal in case of Oriental Insurance Co which in our view is contrary to the view expressed by the Hon ble Supreme Court in the case of Porcelain Electrical Mfg Co, supra and Larger Bench in case of Veer Overseas Ltd. Since the issue is squarely covered by the decision of Hon ble Apex Court and the Larger Bench of CESTAT, we are not referring again this matter to President for the placing the same question again before another larger bench. In case of Super Cassettes relying upon the Hon ble Supreme Court in case of Jagjit Singh [J.T. 1995 (1) S.C. 445] Hon ble Allahabad High Court has held as follows: 8. Section 11B of the Central Excise and Salt Act, 1944 deals with claim for refund of duty. It provides that a person claiming refund of any duty of excise may make an application for refund before the expiry of six months from the relevant date. The explanation to Section 11B defines relevant date and in the case of the present petitioner the relevant date is the date of payment of duty which admittedly, were 28-6-1990 and 2-7- 1990 on which date the petitioner claims to have paid the duty in respect of the inputs by debit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for claiming equality [See Chandigarh Administration v. Jagjeet Singh J.T. 1995 (1) S.C. 445]. 4.15 In case of Mafatlal industries earlier referred by us Hon ble Supreme Court has clearly held that Section 11B of the Central Excise Act, 1944, has in para 96 stated the position in law as follows: 96. It would be evident from the above discussion that the claims for refund under the said two enactments constitute an independent regimen. Every decision favourable to an assessee/ manufacturer, whether on the question of classification, valuation or any other issue, does not automatically entail refund. Section 11B of the Central Excises and Salt Act and Section 27 of the Contract Act, whether before or after 1991 amendment - as interpreted by us herein - make every refund claim subject to proof of not passing-on the burden of duty to others. Even if a suit is filed, the very same condition operates. Similarly, the High Court while examining its jurisdiction under Article 226 - and this Court while acting under Article 32 - would insist upon the said condition being satisfied before ordering refund. Unless the claimant for refund establishes that he has not passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson who claims that he has not passed on the burden of duty/ tax paid. FCI being the service recipient, who has borne the burden of the tax paid is thus entitled to making such a refund claim. However the fact that M/s FCI has not passed on the burden of tax, cannot be a reason to establish that appellants have not passed on the burden. 4.19 In the case of Allied Photographics, [2004 (166) ELT 3 (SC)], a three Judges bench of Hon ble Supreme Court, specifically ruled stating that the accounts of the manufacturer and buyer are distinct. Observations made by Hon ble Apex Court are reproduced below: 13. The point which still remains to be decided is - whether the respondent herein was entitled to refund without complying with Section 11B of the Act on the ground that it had stepped into the shoes of NIIL (manufacturer) which had paid the duty under protest. It was argued on behalf of the respondent that NIIL had paid the excise duty under protest pending final assessment, which was ultimately decided in favour of NIIL and since NIIL had sold the product to the respondent herein, the respondent was entitled to the benefit of the second proviso to Section 11B(1) which inter ali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounts of a buyer (distributor). Consequently, there is no merit in the argument advanced on behalf of the respondent that the distributor was entitled to claim refund of on account payment made under protest by the manufacturer without complying with Section 11B of the Act. 4.20 In the case of Addison and Co Ltd [2016 (339) ELT 177 (SC)], a three judges bench of Hon ble Supreme Court has held as follows: 14. We have considered the submissions made by the Counsel carefully and examined the material on record. The questions that arise for consideration in this case are whether the Assessee is entitled for a refund and whether there would be unjust enrichment if the said refund is allowed. It was held by the Special Bench of CEGAT, New Delhi by its judgment dated 17-3- 1994 in Collector of Central Excise, Madras v. Addison Co. Ltd. [1994 (73) E.L.T. 331 (Tribunal)] that the turnover discount is not an admissible abatement on the ground that the quantum of discount was not known prior to the removable of the goods. In an appeal filed by the respondent-Assessee, this Court by its judgment dated 11-3-1997 in Addison Co. Ltd. v. Collector of Central Excise, Madras (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant s account current maintained with the [Commissioner of Central Excise]; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; (e) the duty of excise borne by the buyer, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, Or (ii) if the goods are exported by land, the date on which such goods pass the frontier, Or (iii) if the goods are exported by post, the date of dispatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. (2) The Central Government shall maintain or, if it thinks fit, specify the authority which shall maintain, proper and separate account and other relevant records in relation to the Fund in such form as may be prescribed in consultation with the Comptroller and Auditor-General of India . 16. In the instant case, the Assessee has admitted that the incidence of duty was originally passed on to the buyer. There is no material brought on record to show that the buyer to whom the incidence of duty was passed on by the Assessee did not pass it on to any other person. There is a statutory presumption under Section 12B of the Act that the duty has been passed on to the ultimate consumer. It is clear from the facts of the instant case that the duty which was originally paid by the Assessee was passed on. The refund claimed by the Assessee is for an amount which is part of the excise duty paid earlier and passed on. The Assessee who did not bear the burden of the duty, though entitled to claim deduction, is not entitled for a refund as he would be unjustly enriched. It will be useful to refer to the relevant para of Mafatlal Industries v. Union of India (supra) in this co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mean that the only persons who were entitled for claim of refund are the manufacturer, his buyer and any other class of persons as notified by the Central Government. There is no dispute about the fact that no notification has been issued by the Central Government as contemplated in Clause (f) to proviso to Section 11B(2) of the Act. He contested that the claim for refund can be made only by the manufacturer or his buyer and any enquiry pertaining to unjust enrichment should be restricted only to the manufacturer and his buyer. The ultimate buyer/consumer will not figure in the scheme of Sections 11B, 12A, 12B and 12C of the Act. This submission was accepted by the High Court in the impugned judgment. We do not approve the findings of the High Court in this regard. 19. The sine qua non for a claim for refund as contemplated in Section 11B of the Act is that the claimant has to establish that the amount of duty of excise in relation to which such refund is claimed was paid by him and that the incidence of such duty has not been passed on by him to any other person. Section 11B(2) provides that, in case it is found that a part of duty of excise paid is refundable, the amount sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ighly difficult for any consumer organisation to get the grant. There is no provision in the Act, Shri Nariman submitted, to locate the person really entitled to refund and to make over the money to him. We expect a sensitive Government not to bluff but to hand back the amounts to those entitled thereto , intoned Shri Nariman. It is a colourable device- declaimed Shri Sorabjee - a dirty trick and a shabby thing . The reply of Shri Parasaran to this criticism runs thus : It ill- becomes the manufacturers/Assessees to espouse the cause of consumers, when all the while they had been making a killing at their expense. No consumers organisation had come forward to voice any grievance against the said provisions. Clause (e) of the proviso to sub-section (2) of Section 11B does provide for the buyer of the goods, to whom the burden of duty has been passed on, to apply for refund of duty to him, provided that he has not in his turn passed on the duty to others. It is, therefore, not correct to suggest that the Act does not provide for refund of duty to the person who has actually borne the burden. There is no vice in the relevant provisions of the Act. Rules cannot be relied upon to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of removal of goods and apply for refund. True it is that there is this practical inconvenience but it must also be remembered that such claims will be filed only by purchasers of high-priced goods where the duty component is large and not by all and sundry/small purchasers. This practical inconvenience or hardship, as it is called, cannot be a ground for holding that the provisions introduced by the 1991 (Amendment) Act are a device or a ruse to retain the taxes collected illegally and to invalidate them on that ground - assuming that such an argument is permissible in the case of a taxing enactment made by Parliament. (See R.K. Garg [(1981) 4 SCC 675 : 1982 SCC (Tax) 30 : AIR 1981 SC 2138] and other decisions cited in paras 87 and 88.) 21. That a consumer can make an application for refund is clear from paras 98 and 99 of the judgment of this Court in Mafatlal Industries (supra). We are bound by the said findings of a Larger Bench of this Court. The word buyer‟ in Clause (e) to proviso to Section 11B(2) of the Act cannot be restricted to the first buyer from the manufacturer. Another submission which remains to be considered is the requirement of verification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be entitled to interest element on any of the amounts due. The matter was adjourned for today. At the time of hearing today, learned counsel for the Revenue has produced a copy of letter dated 13.12.2019 written by Assistant Commissioner, Govt. of India, Ministry of Finance, Department of Revenue and addressed to Deputy Commissioner (Law)CGST Commissionerate, Rohtak stating therein that in terms of the order dated 24.9.2019 passed by this Court, refund claim submitted by the FCI was examined and thereafter cheque No.651380 dated 13.12.2019 amounting to ₹ 2,58,19,711/- favouring FCI, Hisar was handed over to the representative of FCI Hisar. It is further stated therein that since refund claim of ₹ 85,04,673/- claimed by the party in the refund application was not proper and correct, a show cause notice dated 13.12.2019 has also been issued to FCI. 4.22 Be that as it may be, we find in the present case that the appellants have paid the service tax as per self assessment made by them and have filed ST-3 return accordingly. They have not filed any appeal to Commissioner (Appeals) for modification of the said assessment order claiming the benefit of exemption. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
