TaxTMI 
TaxTMI 
2019 (3) TMI 414
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....SM) has been rejected by the said appellate Tribunal on the ground of delay and latches holding that claim for refund for differential service tax deposited by the Assessee vide challan dated 2.12.2006 and 1.3.2007 for which refund was claimed on 13.6.2009 was barred by limitation to claim such refund as is provided under section 11 (B) of the Central Excise Act, 1944, which provides for limitation of one year in the following terms:- "11 B. Claim for refund of [duty and interest, if any, paid on such duty]- (1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] may make an application for refund of such [duty and interest, if any, paid on such duty] to the [Assistant Commissioner of Central Excise ....
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....quired to discharge service tax on the gross value or on the differential amount. It is submitted that the issue was subsequently settled by the Supreme Court on 23.04.2009, when the appeals filed by the Revenue against the Tribunals orders in the case of Shilpa Color Lab Vs. Commissioner 2007 (5) STR 423 (Tri-Bang.) and Roopchayya Color Studio Vs. Commissioner, 2008 (11) STR 125 (Tri-Bang) was dismissed. The consequence of the dismissal of Revenue's appeal by the Supreme Court was that the value of the photographic material shall not be included while calculating the value of services. It is submitted that appellant had filed an application for refund of claim within a period of 2 months from the aforesaid rejection of the appeals file....
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....rvice contract and in such contract there is element of sale of goods. It has been further held that in such cases the question of bifurcating receipts into an element of goods and element of service cannot and does not arise. Para 6 of the judgment reads as under: "6. Section 65(47) defines Photography as including still photography, motion picture photography, laser photography, aerial photography and fluorescent photography. Section 65(48) defines Photography studio or agency as including any professional photo-grapher or a commercial concern engaged in the business of rendering service relating to photography. Section 65(72)(zb) defines Taxable service in relation to photography studio or agency as any service provided to a customer, ....
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.... E.L.T. 132 (SC), the Supreme Court has held that the limitation for refund applied for under the provisions of Section 11 B of the Central Excise Act, 1944, which itself makes a provision for limitation of six months from the relevant date i.e. date of payment, claim for refund filed for the period beyond six months from the relevant date is not admissible. Now this period being amended to one year vide Act of 2000 with effect from 12.05.2000; therefore, when a specific limitation has been provided under Section 11 B, then that limitation has to be adhered specially when it is not the case of appellant that he had deposited such amount under protest to carve out an exception under second proviso to Section 11 B (1). Therefore, reference ....