TaxTMI 
TaxTMI 
2016 (6) TMI 414
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....Ld. Commissioner(Appeals) partly allowed the appeals of the appellants to the extent of Rs. 81,567/ and Rs. 73,330/-and for remaining amounts Orders-in-Original were upheld. 2. The fact of the case is that appellants are registered as a service provider under the category of Commercial or Industrial Construction Services. The appellants filed refund claim on 23/6/2008 for Rs. 11,31,144/- in respect of service tax paid during the period from January, 2006 to March, 2007 and another refund claim filed on 11/3/2008 for Rs. 12,62,900/- on the ground that they have provided service to Mumbai Education Trust(MET), a non-profit making organization engaged in education, and that as per departmental clarification issued under para 13.2 of C....
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....service tax, the amount paid by them was without authority of law. Therefore for the purpose of refund of said amount, limitation as provided under Section 11B of the Central Excise Act, 1944 is not applicable. He placed reliance on the following judgments: (a) Geojit BNP Paribas Financial Services Ltd Vs. CCE., Cus & S.T. Kochi[2015(39) S.T.R. 706(Ker.)] (b) Commr. of C. Ex. (Appeals), Bangalore Vs KVR Construction[2012(26) S.T.R. 195(Kar.)] (c) C.K.P. Mandal Vs. Commissioner of Service Tax, Mumbai-II[2015(38) S.T.R. 73(Tri. Mum)] (d) Natraj and Venkat Associates Vs. Asstt. Commr. of S.T. Chennai-II[2010(17) S.T.R. 3(Mad.)] (e) Commr. of C. Ex. Pune-III Vs. Shankar Ramchandra Auctioneers [....
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.... (S.C.) (ii) Miles India Limited Vs. Assistant Collector of Customs 1987 (30) E.L.T. 641 (S.C.) (iii) Assistant Collector of Customs Vs. Anam Electrical Manufacturing Co. 1997 (90) ELT 260 (S.C.) (iv) Andrew Telecom (I) Pvt. Ltd. Vs. Commissioner of Customs & Central Excise Goa [2014 (34) S.T.R. 562 (Bom.) (v) Union of India Vs. Kirloskar Pneumatic Company[1996(84) ELT 401(S.C.)] (vi) Bajaj Foods Ltd Vs. Commissioner[2015(320) ELT A197(Guj)]. 5. We have carefully considered the submissions made by both the sides. 6. We find that the appellant have admittedly paid the service tax on Commercial or Industrial Construction Service even though such service was not leviable to service tax. Howeve....
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....e duty etc. and when subsequently it is found that this amount is not payable, the same amount stand refundable to the assessee and such refund is treated as refund of service tax/duty only. Therefore, the provision if any applies for refund of such duty is only provided under Section 11B and there is no any other provision. Therefore in our view, any amount which is to be refunded shall be refunded in accordance with Section 11B which include the condition of time limitation. As regard judgments cited by the Ld. A.R. on going through those judgments, we find that the judgments which includes the various Supreme Court judgments wherein the Hon ble Supreme Court has categorically held that for refund of any amount, Section 11B stipulates the....
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....in case when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund. This was the view taken by the Tribunal in a previous decision in the case of Miles India Ltd. v. The Assistant Collector of Customs but it was assailed before this Court. The appeal was withdrawn. This Court observed that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor in the relevant provisions of the Customs Act, 1962. If really the payment of the duty was under a mistake of law, the party might seek recourse to such alternative remedy as it might be advised. See the observations of this Court in Miles In....
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....claim was filed beyond the period prescribed under the Customs Act, the same was righty held by the Commissioner as not sustainable being barred by limitation period." The above judgment was upheld by the Hon'ble Gujarat High Court. Similarly in the case of Andrew Telecom India Pvt. Ltd. of the Hon ble Bombay High Court, the fact was that the assessee paid the service tax, which was not payable and subsequently refund claim was submitted after one year of the payment. The Hon ble High Court has held that the refund claim is covered by Explanation (B) (f) of Section 11B (1) of Central Excise Act 1944, as applicable to service tax vide Section 83 of the Finance Act, 1994, refund claim is not sustainable as it was filed beyond 1 year fro....