TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 338
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....or Rs. 52,25,209/- pertaining to the period 16.02.2005 to 31.03.2006 and another application for Rs. 4,53,164/- pertaining to the period 1.4.2006 to 17.04.2006. The appellant had filed a separate refund claim for Rs. 19,02,730/- for the period 1.4.2005 to 15.6.2005 (Rs.52,25,209/- + Rs. 4,53,164/- + Rs. 19,02,730/- = Rs. 75,81,103/-). Refund of Rs. 18,33,537/- was already granted vide OIO No. SKY/R-10509 dt. 13.05.2009. Therefore remaining amount of refund i.e. for Rs. 57,47,566/- is the subject matter of this case. The adjudicating authority rejected the claim of Rs. 57,47,466/- precisely on the ground of limitation as the refund claim was filed after the stipulated time period of one year from the relevant date as provided under Section 11B of Central Excise Act, 1944. Being aggrieved by the order of the sanctioning authority the appellant filed appeal before the Commissioner (Appeals), who after discussing in detail on the basis of various judgments and also interpreting Section 11B rejected the appeal filed by the appellant and upheld the order in original No. K/R-53/2010, dated 24.03.2010. Being aggrieved by the impugned order the appellant is before us. 2. Shri L. Badrinaray....
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....tion 11B shall apply. He submits that for the purpose of refund of any amount of service tax, Section 11B will invariably apply. In the present case, the refund claim was admittedly filed after one year from the relevant date. Therefore it is clearly time barred. He placed reliance on the following judgments: (i) Union of India Vs. Kirloskar Pneumatic Company 1996 (84) ELT 401 (S.C.) (ii) Andrew Telecom (I) Pvt. Ltd. Vs. Commissioner of Cus. & C. Ex., Goa 2014 (34) STR 562 (Bom.) (iii) M/s. Giriraj Construction & M/s. Parijat Construction, Nashik Vs. Commissioner of Central Excise, Customs and Service Tax, 2016-TIOL-1391-CESTAT-MUM 4. We have carefully considered the submissions made by both the sides and perused the records. We find that the refund was sought for an amount of service tax paid by the appellant on the services received by them from the person located in the foreign country. We do agree that the service tax was not payable on such services by the appellant for the period prior to 18.04.2006, i.e. before enactment of Section 66A of the Finance Act, 1944. However the issue involved in the present case that in the case where the appellant filed the refund claim aft....
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....ection 11B is not applicable for refund of the such amount. In this regard, we are of the view that in every case of refund the amount became refundable only where it is not payable as per law and accordingly every such amount shall be treated as payment without authority of law. If this view is accepted then Section 11B will stand redundant, as in every refund matter Section 11B shall not apply for the reason that any amount which is refundable is neither the service tax nor excise duty and all such amount shall be deemed to be paid without authority of law. Therefore in my considered view, at the time of payment the assesee pays the amount under a particular head such as service tax, excise 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 judgme....
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....ourse to such alternative remedy as it might be advised. See the observations of this Court in Miles India Ltd. v. The Assistant Collector of Customs [1987(30) E.L.T.641 (S.C.) = 1985 E.C.R. 289]." In the case of Miles India Ltd. (supra) held that- "After the matter was heard for some time and it was indicated 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 under Section 27(1) of the Customs Act, 1962, learned counsel for the Appellant sought leave to withdraw the appeal. We accord their leave to withdraw the appeal but make it clear that the order of the Customs, Excise & Gold (Control) Appellate Tribunal suffers from no infirmity. If really the payment of the duty was under a mistake of law, the appellant may seek recourse to such alternative remedy as it may be advised. The appeal is accordingly dismissed as withdrawn." In the case of Anam Electrical Manufacturing Co. (supra) the Hon'ble Supreme Court with regard to limitation under Section 11B lays down the following guidelines: "Where refund application was filed by (1) manufacturer/purchaser beyond t....