2017 (9) TMI 629

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....n 05.03.2008, they have filed a claim for refund of service tax of Rs. 20,36,51,670/- paid during the period August 2003 to March 2006. The claim was on the ground that the services rendered by them as registrar to issues and stock transfer agent were liable to tax only w.e.f. 1.5.2006. The service tax paid by them under the category of Business Auxiliary Service during the period August 2003 to March 2006 is liable to be refunded to them. The claim was examined and the original authority vide his order dt. 04.06.2008 rejected the said claim both on merit and on limitation. On appeal, vide the impugned order, the Commissioner (Appeals) upheld the original order on merit. He observed that as the appellants are not eligible for refund, the co....

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.... the appellant. The Ld. A.R also submitted that there are instances of High Court allowing refund beyond the stipulated time of Section 11B while exercising writ jurisdiction on the ground that the amount collected being not a tax should be restored to the claimant. He submitted that such case laws cannot be relied upon by the Tribunal while deciding the limitation which should be in terms of the statutory provision. 4. We have heard both sides and perused appeal records. Since there is a strong case regarding limitation in the present appeal, we deem it fit to examine this basic issue. Admittedly, the claim was filed beyond the period of one year as fixed by Section 11B. The appellant also is not disputing this. However, they are claimi....

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....uarely a case falling within the provisions of the Central Excise Act, 1944 and therefore, the rule of limitation under Section 11B was applied. That was applied when the application for refund was made invoking Section 11B of the Central Excise Act, 1944. We have no manner of doubt that when this was the provision invoked, same applies with full force including the rule of limitation prescribed therein. For these reasons, we are of the opinion that the decisions relied upon cannot be of any assistance." 5. In the above decision, the Hon'ble High Court categorically held that there is no warrant or justification for holding that a stale or belated claim can be granted in a constitutional remedy by ignoring a statutory prescription. The d....