2017 (10) TMI 809

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....Business and Financial Services. The appellant filed a claim on 30/09/2011 seeking refund of Rs. 37,72,354/- being the service tax paid on late payment charges collected from the customers, which they held that is not liable to service tax. The claim was rejected in toto vide Order-in-original No.7/2012, on the ground of limitation and also for the reason that the theory of unjust enrichment has not been proved with supporting evidence. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) and the Commissioner(Appeals) set aside the order-in-original to the limited extent of rejection of refund claim against payments made for the period post-29-09-2010 and the corresponding appeal No.796/2012 against order-in-....

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....viii. U. Foam Pvt. Ltd. Vs. CCE [1988(36) ELT 551 (AP)] ix. D. Cawsji and Co. Vs. State of Mysore [1978(2) ELT (J 154) (SC)] x. KSEB (WP(C) 15508 of 2007 xi. State of Bihar Vs. Kalika Kuer (For per Incurium)] 5. On the other hand, the learned AR defended the impugned order and submitted that the provisions of Section 11B are applicable for all kinds of refunds under the Central Excise Act and Service Tax. He further submitted that the Hon'ble High Court of P&H in the case of Sarita Handa Exports (P) Ltd. Vs. UOI [2015(321) ELT 434 (P&H)] has held that if the application for refund is filed beyond the prescribed statutory period, then in view of the judgment of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. Vs. UOI ....

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....x. Agro Pack Vs. CCE, Surat-II [2009(238) ELT 750 (Tri. Ahmd.)] 6. Learned AR further submitted that the decisions relied upon by the appellant are not applicable in the present case. He also submitted that the Division Bench of this Tribunal in the case of Rajasthan State Mines & Minerals Ltd. (supra) has considered various decisions of the High Courts and has come to the conclusion that the Tribunals do not have the powers as the Tribunal has been created under the statute and cannot exercise such sweeping powers which are bestowed in the High Courts. The Hon'ble Tribunal has distinguished the judgment of KVR Construction which was passed in exercise of its writ jurisdiction. 7. After considering the submissions of both the parties and ....