TaxTMI 
TaxTMI 
2017 (9) TMI 458
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....t of Rice. The claim of the appellants had been rejected by both the lower authorities on the ground that the refund was filed beyond the statutory time limit of one year prescribed under Section 11B of the Central Excise Act, 1944. Aggrieved from the order of the Ld. Commissioner (Appeals), the appellants have filed this appeal. 2. Ld. Advocate for the appellants submits that Service Tax pertaining to these claims was deposited on 11.02.2008, 07.04.2008 and 25.04.2008 and the two refund claims were filed on 01.02.2010 under Section 11B of the Act. He contended that the assessee deposited Service Tax on the service of Foreign Commission Agents for the export of rice, inadvertently which was exempted from payment of Service Tax. He relied on the Circular No. 143/12/2011-ST dt. 26.05.2011 issued by CBEC clarifying that the Business Auxiliary Service provided by Commission Agents stationed abroad to promote the export of rice is covered by the Notification No. 13/2003-ST. He also relied on the following Judgments:- 1. M/s Geojit BNP Paribas Financial Services Ltd. Vs. Commissioner of Central Excise Customs & Service Tax, Kochi WP (c) No. 18126 of 2015 (M) 2. Monnet International L....
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....Subsequently, they filed refund claim on 01.02.2010 contending that the Service Tax was paid inadvertently. However it was only on 26.05.2011 that a clarification was issued by the CBEC, which clarified that "Also where the commission agents stationed abroad provide business auxiliary service to promote the export of rice, said business auxiliary service is covered by Notification No. 13/2003 ST (as amended) because, the word rice is mentioned under the explanation to the terms agricultural produce , in the inclusive portion along with other items like cereals, pulses, etc." Thus, as a result of this clarification dt. 26.05.2011, the benefit of this exemption notification No. 13/2003 became available to the appellant and the amount collected by the Revenue was therefore without any authority. It is settled position in law that beneficial circular has to be applied retrospectively while oppressive circular has to be applied prospectively. 6. However, on the question of limitation, I find that there are conflicting decisions of the Division Benches of this Tribunal on whether the statutory time limit under Section 11B of the Central Excise Act, 1944 is applicable to claim for refu....
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....es Limited v. UOI reported in 1997 (89) E.L.T. 247 (SC). The order of court on this point is reproduced hereinbelow : 2. So far as the question of levy of surcharge of ten per cent which is in issue herein is concerned, we affirm the judgment and order of the Madras High Court. So far as the question of refund is concerned, it is obvious that it shall be governed by the law declared in Mafatlal Industries v. Union of India 1997 (89) E.L.T. 247 (S.C.) = 1996 (9) scale 457, read with Clause (6) of the format order, a copy of which is enclosed herewith, which is as follows : "Where a refund application or an appeal is preferred under and in accordance with the directions (1), (2), (3) and (4) above, the same shall be entertained only if the applicant for refund/appellant files affidavit stating that he has not passed on the burden of the duty, which is claimed by way of refund, to another person. In case the applicant for refund is a company or a society, the affidavit shall be sworn by the Managing Director or the Principal Officer of the Company or the Society, as the case may be. Such an affidavit shall be treated as an averment/assertion which an applicant for refund has to make....
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...., after withdrawing the writ petition or the suit, as the case may be. (3) Where, however, a writ petition or suit claiming refund was filed directly in the High Court/Civil Court (i.e., without filing a refund application), the petitioner/plaintiff shall be entitled to withdraw such writ petition/suit or any appeal arising therefrom and prefer a refund claim under Section 11B within sixty days from today provided the writ petition or suit was filed within the period prescribed by the Central Excise Act/Customs Act for filing the refund application. It is clarified herewith that even in a case where such writ petition has been allowed and an appeal filed by the Revenue is pending, the writ petitioner shall be entitled to withdraw the writ petition, in which event, the Revenue appeal shall be disposed of permitting the writ petitioner to withdraw the writ petition to pursue the remedy proposed hereby. (4) The above rules, however, do not apply in the case of a claim for refund of duty levied and recovered under an unconstitutional provision. In such a case, the period of limitation shall be prescribed in Mafatlal Industries. The duty to allege and prove that the duty has not been ....