TaxTMI 
TaxTMI 
2016 (12) TMI 1276
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....EL/01 and holding Service Tax Registration STC No. AACM0828RST001 for their Mumbai Unit. The appellant have been registered for providing taxable service under the category of Telecommunication Services falling under Section 65(105)(zzzx) read with Section 65[109a] of the Chapter V of Finance Act, 1994 (32 of 1994) as amended ( Act in short). Accordingly, the appellant undertook to comply with the provision of the Act ibid, Service Tax Rules, 1994 as amended (hereinafter referred to as Rules ) and Notifications issued from time to time on the same. The appellant are levying and collecting the Service Tax charges in their monthly/bi-monthly bills from their subscribers of various categories and accordingly discharging their Service Tax liability to the department from time to time. 2. Under the OYT (Own Your Telephone) scheme of the appellant, an applicant makes an advance lump sum payment in the form of advance payment of part of the rent for certain number of years. The subscriber gets a rebate and is liable to pay lesser rent for certain number of years, than normal rent fixed by the Telephone Department. This scheme was notified under Section IV of Indian Telegraph Rules, 19513....
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....nt, vide their fax letter dated 02.09.2011, intimated to the department that they had decided not to file any appeal against the above mentioned Court s Order date 21.12.2010 and abide by the said Order, and that they had started the process of identifying those OYT subscribers to whom refund was due and after refunding the same to the subscribers they would be entitled for claiming of refund claim from the department by way of adjustment against the Service Tax liability of September 2011. 7. The appellant, vide their fax letter dated 23.09.2011, requested the department about the action being taken by the department and if the department was filing any SLP, so that the appellant would start returning the Service Tax to the OYT subscribers as per Court s Order dated 21.12.2010 and claim refund of the same from the department by adjusting it against subsequent month liability. 8. The department vide letter dated 26.09.2011, advised the appellant that as per Service Tax Rules the claim of such refunded amount to the subscribers from the department is to be made only through proper refund claim and not by any adjustment. 9. The Department vide letter dated 10.10.2011, informed the....
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.....e. 21st August,2012, the amount of refund would be adjusted against next payment of Service Tax, due on 06thOctober, 2012. 15. The Department vide letter dated 4th October, 2012, again, advised the appellant not to resort to any suo-motto adjustment in tax liability. 16. A Show Cause Notice No. LTU/ST/MTNL/MUM/Refund/03/2012/9003 dated 18.10.2012 was issued by the department to the appellant, Mumbai as to why the refund claim of Rs. 35,50,320/- pertaining to the period 01.07.1994 to 31.03.1995, should not be rejected being time barred and hit by unjust enrichment principle. 17. The show cause notice was adjudicated by the Deputy Commissioner, Central Excise & Service Tax LTU New Delhi vide Order-in-Original NO. 03/Refund/ST/MTNL/2013 dated 20.12.2013 whereby the Deputy Commissioner rejected the refund claim being time barred under Section 11B of the Central Excise act, 1944 while a part of it was also hit by the doctrine of unjust enrichment. 18. An appeal filed against this order was decided by the Commissioner (Appeals) vide the impugned order in which the rejection of refund claim has been upheld. 19. Being aggrieved with the said impugned order the appellant filed this ap....
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....favour. 23. Section 11B of the Central Excise Act, 1944, made applicable to Service Tax refunds in accordance with Section 83 of the Finance Act, 1994 provides for period during which refund claim was required to be filed by the Appellants. As per Section 11B, application in proper form alongwith documentary or other evidence, has to be made seeking refund before expiry of one year from the relevant date. Relevant date in relation to present case has been defined in Explanation (B)(ec) as follows: "Relevant date means "(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction,." There is no doubt that the refund in the present case has become due and claimed by the appellant in terms of the order of Hon'ble Bombay High Court. 24. Since the Hon'ble Bombay High Court decision is on 21.12.2010, and the refund claim has been filed on 21.08.2012, the lower authorities have held that the refund is time barred. 25. The appellant s submission against the finding of time bar is that the issue attained finality only when the SLP....