2001 (11) TMI 3 - AT - Service Tax

Tribunal affirms decision on service tax refund; appeal rejected under Section 11B.

The appellant's appeal was rejected by the Tribunal, affirming the lower authorities' decision regarding the inability to refund service tax collected ... Refund of service tax - limitation under Section 11B of the Central Excise Act - provisional deposit versus service tax - payment under protest - no discretion to condone delay under Section 11BRefund of service tax - limitation under Section 11B of the Central Excise Act - provisional deposit versus service tax - payment under protest - no discretion to condone delay under Section 11B - Refund claim for amounts deposited as service tax was barred by limitation under Section 11B and the payments were treated as service tax, not provisional deposits; no condonation of delay was permissible. - HELD THAT: - The payments in question were credited to the Government under the head 'Service Tax' through TR-6 challans and were described by the appellant in his covering letter as deposits of service tax and a claim 'for the refund of service tax already deposited by us during the year 1997-98'. The appellant thereupon expressly admitted the applicability of the limitation provisions of Section 11B. The refund claim was filed on 4-8-98, after the expiry of six months from the dates of payment. There was no contention or evidence that the amounts were paid 'under protest'. Given these facts, the Tribunal held that the deposits were payments of service tax (and not mere provisional deposits) and that the claim was time-barred under Section 11B. Section 11B affords no discretion to the Tribunal to condone delay in filing the refund claim, and accordingly the Commissioner (Appeals) order rejecting the claim on limitation grounds was upheld. [Paras 3, 4]Appeal rejected; refund claim held time-barred under Section 11B and payments treated as service tax, with no power to condone delay.Final Conclusion: The Tribunal upheld the Commissioner (Appeals) and dismissed the appeal: the sums deposited were service tax, the refund claim was filed beyond the sixmonth period under Section 11B, no payment under protest was shown, and the Tribunal had no discretion to condone the delay. The appellant, engaged in outdoor advertising, collected service tax from clients but could not refund it as claimed due to time-bar under Section 11B of the Central Excise Act. The Tribunal rejected the appeal, upholding the lower authorities' decision.