TaxTMI 
TaxTMI 
TaxTMI 
2014 (4) TMI 507
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....ssistant Commissioner rejecting the application of the Appellant/ Assessee for refund of service tax. The Application was rejected on the ground that it was filed beyond the period of one year from the relevant date. 3. The Revenue, therefore, carried the matter to the Tribunal. The Tribunal has held that the Assistant Commissioner was right in rejecting the application for refund, by applying the bar contained in subsection (1) of Section 11B of the Central Excise Act, 1944. 4. Mr.R.V.Desai , learned Senior Counsel appearing in support of this Appeal, submits that the following questions would arise for determination and consideration in this Appeal:- (i) Whether the provisions of Section 11B of the Central Excise Act, 1944 apply to the Export Services? (ii) Whether in facts and circumstances of the case and in law the Tribunal was justified in rejecting the refund of service tax paid, on limitation ground under Section 11B of the Central Excise Act, 1944, which was paid due to misunderstanding of the law? (iii) Whether the Tribunal was justified in relying on paragraph 99 of the judgment of the Honourable Apex Court re....
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....uch view of the Tribunal goes contrary to the provisions of the Central Excise Act, 1944 and the law laid down by the Honourable Supreme Court in the case of Mafatlal Industries (supra). 6. Mr.Desai was at pains to point out that the view taken by the Honourable Supreme Court that in certain cases a suit would not lie, but a writ petition under Article 226 or Article 32 of the Constitution of India would be maintainable to claim refund of the tax levied and collected illegally and to such proceedings the bar under Section 11B( 1) of the Central Excise Act, 1944 cannot be applied. This has been extended to several cases of refund under the Central Excise Act, 1944. In other words, even if this Court was to exercise jurisdiction under Section 35G of the Central Exercise Act, 1944 and decide an appeal from the order of the Tribunal, still its plenary powers can be invoked by the Assessee. The application of such plenary powers and inherent jurisdiction vested in it enables this Court to hold that the application for refund of duty recovered illegally is otherwise maintainable. This is how reliance is placed by Mr.Desai on the judgments delivered by the Karnataka and Madras High Court....
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.... judgments which have been brought to our notice. 9. Before noting the facts and circumstances in this case, a reference can usefully be made to Section 11B of the Central Excise Act, 1944. It is conceded that the application was made for refund of the service tax. The levy, assessment and collection of service tax and to the extent permissible by law is with the aid of the Central Excise Act, 1944. By certain provisions of the Finance Act, the Central Excise Act, 1944 has been made applicable in relation to the refund of amount of service tax paid by the Assessees. Section 11B of the Central Excise Act, 1944 reads as under:- "11B. Claim for refund of duty and interest, if any, paid on such duty:- (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence inclu....
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....on the incidence of such duty and interest, if any, paid on such duty to any other person; (e) the duty of excise and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (f) the duty of excise and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in subsection (2). (4) Every notifi....
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....her 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 such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person; (ea) in the case of goods which are exempt from payment of dut....
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....he Appellants paid the service tax on the value of foreign agency commission which they realized. In the light of the same and in view of the circular of February, 1999 issued by the Central Board of Excise and Customs, the Appellants claimed that they are entitled for refund of the service tax which they have paid on agency commission service activity erroneously. The paragraph 5 of this application states that Appellants were under bonafide mistake that the subject service activity would not be amounting to export of services till the Circular of the Central Board of Excise and Customs came to be issued. Therefore, they did not file the refund claim in respect of the subject service tax. Hence, they requested to condone the delay in filing the rebate claim. It is such an application which was placed before the Assistant Commissioner and he passed the order on 28.06.2010 holding that the application is clearly traceable to subsection (1) of Section 11B of the Central Excise Act, 1944. In considering such application, the period prescribed in the statutory provision cannot be ignored. He, therefore, held that once the service tax has been paid for the period May, 2004 to October, 2....
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....Lower Authority directed to grant refund. Appeal allowed." 13. The Revenue, therefore, approached the Tribunal and the Tribunal in upholding the order of the Assistant Commissioner came to a conclusion that the Challans which have been filed along with the refund application show that the service tax payments were made during the period 20062007 and 20072008 and last such challan was dated 01.12.2007. The Tribunal also noticed that the service tax liability for the period May, 2004 to March, 2006 was discharged in May, 2006. If the refund claim was submitted in the office of the Assistant Commissioner on 28.04.2010, then, it was clearly beyond the period of one year prescribed under Section 11B(1) of the Central Excise Act, 1944. 14. We are not in agreement with Mr.Desai that the Tribunal in upholding the order of the Assistant Commissioner has misread and misinterpreted the law laid down by the Honourable Supreme Court in the case of Mafatlal Industries (supra). We are of the view that the Tribunal in order to support its reasonings and conclusions referred to the judgment in the case of Mafatlal Industries (supra). That reference was made in the context of dealing with the argu....
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....at in the facts and circumstances of the present case the Assistant Commissioner and the Tribunal committed any grave error of law or perversity in rejecting the refund claim. The wider question or controversy need not be gone into in the facts of the present case. Suffice it to hold that once the application for refund was made in terms of the Central Excise Act, 1944, it has to be considered in accordance therewith and not otherwise. If the provision of the Central Excise Act, 1944 has been invoked, then, the same must apply with full force. One cannot agree with the Assessee that the provision may have been invoked, but the claim for refund should be considered by not applying the Rule of Limitation prescribed therein. As has been held by the Honourable Supreme court in numerous cases and decisions that the Rule of Limitation is provided in order to uphold a larger public interest. The statutes and Rules of limitation are statutes and prescriptions of repose and peace. They give finality to certain proceedings and orders. The reopening thereof is not permissible beyond a particular limit. In these circumstances we do not see how the Tribunal erred in applying the Rule of Limitat....
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....iginal order. The Writ Petition was directed against both the orders and the learned Single Judge set aside the order of the Commissioner (Appeals) and directed refund of service tax paid. The learned Single Judge held that Section 11B was not applicable since the amount paid by the Petitioner in that case was not duty. It was held to be a deposit with the Department and not a duty paid. The learned Single Judge held that there was no necessity to invoke Section 11B of the Central Excise Act, 1944. After recording such findings, the learned Single Judge reached a conclusion that the disinclination to entertain the claim for refund is improper and illegal, therefore, proceeded to quash the orders in that behalf. It is in this context that the Division Bench of the Karnataka High Court speaking through Her Ladyship Hon'ble Mrs. Justice Manjula Chellur as Her Ladyship then was, held thus:- " 15. We are not concerned with the other conditions of Section 11B of the Act because it is not the case of the appellant Department that the burden of service tax was passed on to any other person. As a matter of fact, the controversy in ....
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....of limitation), he initiated action for refund of the tax paid by him, due to mistake of law. After referring several judgments and provisions of Section 11A & 11B of Central Excise Act, at paragraph 137 of the said judgment, their Lordships have concluded as under: "137. Applying the law laid down in the decisions aforesaid, it is not possible to conclude that any and every claim for refund of illegal/unauthorized levy of tax can be made only in accordance with the provisions of the Act (Rule 11, Section 11B etc. as the case may be), and an action by way of suit or writ petition under Article 226 will not be maintainable under any circumstances. An action by way of suit or a petition under Article 226 of the Constitution is maintainable to assail the levy or order which is illegal, void or unauthorized or without jurisdiction and/or claim refund, in cases covered by propositions No . (1), (3), (4) and (5) in Dulalbhai's case, as explained hereinabove, as one passed outside the Act and ultra vires. Such action will be governed by the general law and the procedure and period of limitation provided by the specific statute will have no a....
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....ontended it would not have attracted levy of service tax. In other words, there was an application for refund of said tax and the question that arose therein was what is the relevant date for the commencement of the period of limitation for the purpose of Section 11B and was held that it would be the date of payment of duty. It was held in the said case that amounts paid cannot be taken to be duty of excise, therefore bar of limitation under Section 11B cannot be applied because such limitation would come in the way of any person claiming refund of any duty of excise and interest. 22. In the case of Commissioner of Central Excise, Bangalore v. Motorola India (P.) Ltd. (supra) the Division Bench of this Court considered similar issue. It was a case where excess amount was paid over duty under Central Excise Act on the direction of the Department. There was an application for refund of amount and the same came to be rejected by the Assistant Commissioner on the ground of lapse of time. It was confirmed by both the Appellate Authority and also the Tribunal. Aggrieved by the order of the Tribunal, Revenue came up before the High Court. Their ....