AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (4) TMI 910
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....mmission agents in relation to sale or purchase of agricultural produce. The appellant were engaged in the business of export of rice and foreign agents provided such business auxiliary service. Realizing that the services received by them are exempt the appellants filed claims for refund of tax already paid. The claims were rejected by the Original Authority on the ground that these were barred by limitation. On appeal, the Commissioner (Appeals) confirmed such rejection. 3. On further appeal before the Tribunal, the matter was heard by a Single Member who passed the present interim order. The Single Member Bench referring to the decision of the Tribunal in Monnet International Limited vs. CCE, New Delhi (final order No. 52170-52171 of 2017 dated 08/03/2017) and in CCE, Hyderabad - III vs. XL Telecom Ltd. - 2006 (206) E.L.T. 303 (Tri. - Bang.) recorded that there were divergent views of this Tribunal on the same issue and accordingly a reference was made for constitution of Larger Bench. The specific reference is as below :- "(a) Whether in respect of the claim for refund of illegal levy of Service Tax or of Service Tax collected without authority of law, the statutory time limi....
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....nt aspect to be considered is that the amount paid by the appellant has been deposited under a proper service tax head of account by a payment challan. The said amount has been appropriated by the Government as service tax. Later, the appellant realized that the services were exempt by a notification. The amount already paid was in the form of a tax through the Jurisdictional Authorities and the same has been accounted and appropriated by the Government as a tax. Section 11B of the Central Excise Act, 1944 made applicable to service tax refund clearly stipulates that any person claiming refund of any duty of excise to make an application for refund of such duty to the Assistant Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence as the applicant may furnish to establish that the amount of duty of excise in relation to which said refund is claimed was collected from or paid by him and the incidences of such duty had not been passed on by him to any other person. 7. What is crucial is that the appellants paid the claimed amount a....
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....constitutional for violation of any of the Constitutional limitations. This is a situation not contemplated by the Act. We note in the present case there is no such situation of the provision of any tax levy in so far as the present dispute is concerned is held to be unconstitutional. As already held that the appellant is liable to pay service tax on reverse charge basis but for the exemption which was not availed by them. I hold that the decision of the Tribunal in Monnet International Ltd. (supra) has no application to decide the dispute in the present referred case. We take note of the decision of the Tribunal in XL Telecom Ltd. (supra). It had examined the legal implication with reference to the limitation applicable under Section 11B. We also note that the said ratio has been consistently followed by the Tribunal in various decisions. In fact, one such decision reached Hon'ble Supreme Court in Miles India Limited vs. Assistant Collector of Customs - 1987 (30) E.L.T. 641 (S.C.). The Apex court upheld the decision of the Tribunal to the effect that the Jurisdictional Customs Authorities are right in disallowing the refund claim in terms of limitation provided under Section 27 (1....
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....owers under constitution in Writ jurisdiction. Therefore, my Brother entertained view that decision in Monnet International Limited (supra) has no applicability to decide the present dispute. 3. I find that in the case of Parijat Construction vs. CCE, Nashik -2018 (359) ELT 113 (Bom.), the Hon'ble Bombay High Court has examined the issue in hand in Central Excise Appeal No. 306/2016, which has been decided on 13.10.2017, wherein the facts of the case are as under:- "2. The appellant is engaged in providing "Commercial or Industrial Construction" service and are registered as a service provider under that category. The appellant had during the period May 2006 to November 2007 secured a contract from Mumbai Educational Trust for construction of administration and Core Course building. The appellant being under the bona fide belief that the transaction attracts Service Tax paid the same without collecting the same from the customer and deposited it to the credit of the Central Government. The appellant filed a refund claim on 11th March, 2008 for Rs. 12,62,900/-. The refund claim was filed as the appellant had provided construction services for use of organisation or insti....