TaxTMI 
TaxTMI 
2012 (11) TMI 128
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....ntered into an agency commission agreement with their foreign principal. In terms of this agreement, they carried out marketing efforts to find Indian customers for the products manufactured by the principal. In return they were paid agency commission at specified percentage for the said services in the convertible foreign exchange which they realized through normal banking channel. Since assessee was under bona fide belief that the said marketing services amounted to Business Auxiliary Services in terms of Section 65 (19) of the Finance Act, 1994 read with 65(105) (zzb) of the Finance Act, they paid Service Tax at appropriate rates and in case of delayed payment of said tax they also paid penal interest. In their view this agency commissio....
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....evenue have filed this appeal against the impugned order before this Tribunal. 3. Ms. D.M. Durando Deputy Commissioner (A.R.) appearing for the Revenue submitted that it is seen from the TR-6 challans submitted along with the refund claim that the service tax payments were made during the period 2006-07 to 2007-08 and the last such challan is dated 1.12.2007. Since, the refund claim was filed on 28.4.2010 the claim is clearly time barred in terms of Section 11B of the Central Excise Act, as made applicable to Service Tax matter vide Section 83 of the Finance Act, 1994, and therefore the claim was rightly rejected by the original authority. She further submitted that the Supreme Court in the case of Mafatlal Industries Ltd. Vs. Union of Ind....
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.... their principal under the bona fide mistake that such service activity would not amount to export of service. When the board has issued a circular in February 2009, they came to know that they were not supposed to pay service tax on the agency commission covered under Export of Service Rules 2005. Since the service tax was paid by them under the bona fide mistake and this tax was not payable, time limit of Section 11B shall not be attracted in their case and therefore Commissioner of Central Excise (Appeals) has rightly allowed their appeal as per law. He relied upon the decision of K.V.R. Constructions Vs. Commissioner of Central Excise, Bangalore 2010 (17) S.T.R. 6 (Kar.) wherein it was held to be a deposit and not as a duty, therefore t....
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.....) and CCE Mumbai Vs. Precision Dies and Pouching reported in 2003 (160) ELT 412 (Tri.Mum.) and K.S. Nagarajan Vs. CCE, Salem reported in 2010 (18) S.T.R. 168. 6. After hearing both the sides we find that issue involved in the present appeal is whether the refund claim filed by the respondent is h it by the time limitation as prescribed under Section 11B of the Central Excise Act. The refund claim is present case was filed on 28 th April 2010 for refund of service tax paid by them. The original authority in para 2.1 of the Order-in-Original has stated that the TR-6/GAR-7 challans filed along with the claim and the statement furnished by the claimant shows that the service tax payments were made during the period 2006-07 and 2007-08 and las....
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....(89) E.L.T. 247 (S.C.) and the Hon'ble Supreme Court has observed in the para 99 of the judgment as under:- "By virtue of sub-section (3) to Section 11B of the Central Excise and Salt Act as amended by the aforesaid Amendment Act, and by virtue of the provisions contained in sub-section (3) of Section 27 of the Customs Act, 1962 as amended by the said Amendment Act, all claims for refund (excepting those which arise as a result of declaration of unconstitutionality of a provision whereunder the levy was created) have to be preferred and adjudicated only under the provisions of the respective enactment. No suit for refund of duty is maintainable in that behalf. So far as the jurisdiction of the High Courts under Article 226 of the Constitut....