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TMI Blog2024 (6) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... ated from fermentation of sugar during production of Yeast to Dr. Balsaheb Sawant Konkan Krishi Vidyapeeth for research purpose to find out suitability of factory waste for growing rice and vegetable and it has also commissioned study on it in the said Vidyapeeth. Appellant had taken Service Tax registration for services relating to Goods Transport Agency (GTA) and Manpower Supply Agency Services. It had also paid Service Tax on reverse charge basis in respect of freight bills raised by the transporters for transportation of effluent but after coming across the judgment of this Tribunal passed by its Chennai Bench in the case of Oil And Natural Gas Corporation Ltd. Vs. Commissioner of Central Excise and Service Tax, Tiruchirapalli in final order No. 42114/2018 dated 23.07.2018 wherein such transportation of effluents were treated to be as not goods transportation and Service Tax was held to be not payable, it had applied on 07.09.2018 for refund of the above referred amount for the period mentioned in the preceding paragraph but received a show-cause notice dated 14.11.2018 proposing denial of refund on the ground that refund claim was filed beyond the time limit prescribed under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. He also placed his reliance on the decision of several High Courts passed on the issue namely Parijat Construction Vs. CCE, Nashik reported in 2018 (359) ELT 113 (Bom.), National Institute of Public Finance & Policy reported in 2019 (20) GSTL 330 (Del.), 3E Infotech reported in 2018 (18) G.S.T.L. 410 (Mad.); Swastik Sanitarywares Ltd. reported in 2017 (49) S.T.R. 484 (Guj.); Indo- Nippon Chemicals Co. Ltd. reported in 2005 (185) E.L.T. 19 (Guj.); Petition for Special Leave to Civil Appeal dismissed by the Hon'ble Supreme Court reported in 2055 (186) ELT A117 (SC), by which refund arising due to absence of levy or payment made mistakenly was allowed. In toto he pleads for acceptance of the appeal filed by the Appellant by setting aside the order by the Commissioner (Appeals). 4. Per contra, Learned Authorised Representative for the Respondent-Department Mr. S.B.P. Sinha placed his reliance on the decision of Mafatlal Industries Limited Vs. Union of India reported in 1997 (89) ELT 247 (SC), and the decision of the Hon'ble Punjab & Haryana High Court in the case of Sarita Handa Exports (P) Ltd. reported in 2015 (321) ELT 434 (P&H) and argued that duty paid that was not payabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 11B of the Central Excise Act can be made applicable but to our considered view, it had made payment of Service Tax after ascertaining the same to be payable and subsequently discovered upon pronouncement of order by this Tribunal that Service Tax was not payable. Be that as it may, when claim of refund was filed under Section 11B of the Central Excise duty that deals with only refund of duty and interest, we are of the view that the period of limitation for such filing of claim would operate. 7. Before delving more into the detail of facts, it is imperative to have a look at the legislative intent of introduction of period of limitation in respect of suit, appeal and application through the Limitation Act that was brought into the statute book in 1859 and had undergone changes through amendments made into the same in 1871, 1877, 1908 and ultimately in 1983. The object of this Act can be stated to be a prescription of a time periods within which a 'right' can be enforced in a Court of Law. To start with the words of "Salmond", as quoted in his book on jurisprudence, "the law comes to the assistance of the vigilant and not to the sleepy". Further it can be said that law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Apex Court in the case of M.P. Steel Corporation Vs. Commissioner of Central Excise reported in (2015) 7 SCC 58 was to the effect that Limitation Act would not be applicable to fiscal statute (only its spirit can be applied) is that Section 29(2) of the said Limitation Act provides that when limitation is prescribed in special statute, the general provision of Limitation Act would not be made applicable. In the Central Excise Act for the purpose of refund limitation of one year being specifically provided under Section 11B, it is now to be examined as to if that would be applied strictly in cases of all refunds when such erroneous payment was demonstratively held to be a payment under mistake of law. Before entering into the analysis of its admissibility, we consider it to place it on record that spirit of Section 3 of the Limitation Act that also deals with application and appeals, would go to say that law of limitation only Bars the judicial remedy and does not extinguish the right. 8. To settle divergent decisions on this issue of refund at rest, a nine judges Constitution Bench of the Hon'ble Supreme Court was constituted exclusively to deal with all kinds of refund i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) SCR 64], that was extensively discussed in Mafatlal Industries Ltd. case, but those discussions are fruitless and redundant for the reason that in the above quoted paragraph, it is clearly mentioned that without reopening such assessment/order on the basis of decision, refund was not possible but such reopening or re-assessment itself is impermissible in law. That is what we understood from the plain language of the text. In other words on the basis of the findings of the Tribunal/High Court/Supreme Court given in respect of another person, reopening of assessment is not permissible and without reassessment refund can't be granted. In our considered view that also finds acceptance by the Amended Section (2) of the Finance Act, 1994 that self-assessment is also an assessment order, limitation would run from the date of self-assessment, if not from the date of payment. 10. We are, therefore, of the considered view that Appellant is not entitled to get the refund as claimed by it for the reason that such claim was made after the period of limitation was over and the judgment of the Hon'ble Bombay High Court in the case of CCE Nagpur Vs. SGR Infratech Ltd., cited supra, in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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