AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2015 (7) TMI 67
X X X X Extracts X X X X
X X X X Extracts X X X X
....ia, observed that the amount collected by the applicant towards vehicle registration charges from the customers are not taxable and accordingly dropped the demand of Service Tax of Rs. 97,416/- on this count vide order-in-Original No. 05/S/Tax/Jt. Commissioner/2007 dated-20/12/2007. 3. Thereafter, the present refund claim for Rs. 1,97,913/-was filed on 24/12/2008 on the ground that the Service Tax paid on registration charges for the period 1/9/2004 to 30/9/2007 by the appellant is bad in law, hence refund of the Service Tax should be allowed to them. The refund was sanctioned to them by the adjudicating authority. While setting aside the impugned order allowing refund, the Ld. Commr. (Appeals) recorded a finding that since the refund clai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s duty of excise. In support he has referred to the judgment of the Hon'ble Karnataka High Court in the case of CCE Vs. KVR Construction reported in 2012 (26) STR 195 (Kar.) and Shraban Banarasilal Jejani Vs. CCE -2014 (35) STR 587 (Tri-Mum). Further, countering the observation that the refund is hit by unjust enrichment, he has submitted that the charges recovered from the customers prior to levy of Service Tax and after the levy since remained same, therefore, the burden of service tax has not been passed on to the customers. 5. The Ld. A.R. for the Revenue supporting the impugned order has submitted that the present refund claim pertains to the period September, 2004 to September, 2007, and the payment of service tax was not in disp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....paid on vehicle Registration charges for which no demand notice was pending nor it was in dispute before the authority concerned about the payment of service tax. The Appellant had paid Service Tax voluntarily during the said period. Therefore, the present refund claim is a separate proceedings and in my opinion cannot be construed as a refund arising out of the said order. Had the refund filed for the period July, 2003 to August, 2004, the demand could have been construed as a consequential refund to the said Order and covered under the definition of 'relevant date', as per clause (ec) of Explanation-(B) to Section 11B(5) of CEA, 1944, which reads as: "[Explanation. - For the purposes of this section, - (A) "refund" includes reba....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., 1991 or thereafter - by mis-interpreting or mis-applying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by mis-interpreting or mis-applying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactment before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 - and of this Court under Article 32 - cannot be circumscribed by the provisions of the said enactments, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Act, as the case may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal - which is not a departmental organ - but to this Court, which is a civil court. (ii) Where, however, a refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. This principle is, however, subject to an exception : where a person approaches the High Court or Supreme Court challenging the constitutional validity of a provision but....