TMI Blog2023 (5) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... o, took credit of excess tax paid and since they could not use such credit, they preferred a refund application. What is therefore apparent is that the appellants were providing services, which were otherwise chargeable to service tax as per Finance Act 1994. Non receipt of payment on account of any commercial dispute cannot make such services as exempt services or an activity not amounting to service under the statutory provisions, on which no service tax can be levied or collected - There is also no denial that there was no mistake of law in the sense that the tax was leviable on the categories of services being provided by them and the fact that they have provided such services irrespective of whether they have received the payment or not for some reason. The only ground is that they had not completed the service and hence at that stage at which they paid service tax, they were not liable to pay but they paid. They are not disputing non provision of service nor they are disputing that such services were not attracting service tax. In the case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [ 1996 (12) TMI 50 - SUPREME COURT] , Hon ble Supreme Court has inter alia, ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es etc., to M/s Hindustan Petroleum Corporation Ltd.,(HPCL) during the period March 2015 to January 2016. Appellant had also issued invoices to M/s HPCL for the services rendered by them during the said period and also discharged service tax on such invoices on self-assessment basis. Later on, HPCL disputed some of these invoices on that ground that they were not actually rendered by the Appellants as was mutually agreed and that the said dispute remained unresolved as of 20.06.2017. The Appellant, therefore, passed credit notes in their books of account for reversing the invoice income, including service tax, on the said invoices. They also took credit of excess service tax paid on the output services in respect of the unpaid/disputed invoices as per Rule 6(3) of Service Tax Rules 1994. Further, instead of carrying forward the excess tax paid as credit in Tran-1, the Appellant preferred refund manually initially but since it was not received in the Department, a fresh refund was filed on 18.03.2019. 2. The Learned Counsel further submitted that the Original Authority rejected the claim vide order dated 25.07.2019 on the grounds that the claim is time barred, prone to unjust enr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment passed by Hon ble Supreme Court in the case of Mafatlal Industries Ltd., Others Vs Union of India and others [(1997) 5 SCC 536 = 1997 (89) E.L.T. 247].(SC). The Learned DR has also relied on the Tribunal judgment passed by Single Member Bench in the case of Oil India Ltd., Vs Commissioner of Central Tax, Visakhapatnam [2019 (27) G.S.T.L.541 (Tri. Hyd.)], wherein, it was held that the refund claim under Section 11B r/w Section 83 of Finance Act was not maintainable for any amount paid beyond the scope of Finance Act, 1994 itself. 6. The issue which needs to be decided is whether in the facts of the case, the refund was hit by the time bar as prescribed under Section 11B of Central Excise Act as made applicable to service tax by Section 83 of Finance Act 1994 or otherwise. On the one hand, the appellants are taking the plea that the service tax was paid under mistake of law and hence they are not hit by the limitation, whereas the Department is mainly relying on the ratio of Hon ble Supreme Court in the case of M/s Mafatlal Industries Ltd., as per which such refund has to be within the provisions of statutory provisions under Central Excise Act/Finance Act. It is an admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd application has necessarily to be filed in accordance with the provision of the enactment unless refund was as a consequence of declaration of any provision under the law as unconstitutional where the person may resort to the writ jurisdictions or Contract Act etc. In this case, the facts narrated in, paras supra, shows that refund was not on account of any provision of service tax, which has been declared as unconstitutional on any ground. I have also perused the order of the Commissioner (Appeals) who has relied on various judgments including Mafatlal Industries Ltd., case, referred supra, and has come to the conclusion that the invocation of limitation by the Original Authority was legal and justified. 9. At this juncture, it would be appropriate to sum up the basic grounds canvassed by the Appellant and juxtapose with the propositions and decisions of Hon ble Supreme Court in the case of M/s Mafatlal Industries Ltd. Essentially the appellants are claiming that excess payment was on account of Mistake of Law , which they noticed on going through the clarificatory Circular issued by the Board in 2011. It is noted that the said Circular merely states that unless certain oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also not squarely applicable in the present case in as much as, the issue here is not whether the granting of refund under Section 11B was beyond the scope of the Act itself or that of jurisdiction. The facts are also not identical. As discussed in foregoing paras, it is not a case of mistake of law or unconstitutionality of any provision under which it has been levied and therefore any such refund has to be decided within the scope of the Act itself. Keeping in view the judgment of Hon ble Supreme Court in Mafatlal Industries Ltd., Others case, the provisions under Section 11B is wide and exhaustive and covers all possible situations where excise duty or service tax paid including erroneously paid, can be refunded. However, this is subject to rigors of limitation prescribed under the law itself before it is examined on merit. 12. In view of above, the order of Commissioner of Central Tax(Appeals) is liable to be upheld on the grounds of limitation itself and appeal filed by the Appellant is liable to be dismissed. As regards other observations of the Original Authority, rejecting the refund claim, it is observed that the Original Authority has denied the claim on account of l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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