TaxTMI 
TaxTMI 
2019 (5) TMI 515
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....mineral oil and natural gas. During the relevant period, they availed services of M/s B.J. Services in relation to drilling of exploratory wells. M/s BJ Services discharged appropriate service tax to the department. However, on the same services, the appellant also paid service tax under reverse charge mechanism to the extent of Rs. 20,43,584/- under various challans dated 07.08.2014, 16.08.2014 and 30.09.2014. Realising that they have paid service tax wrongly, the appellant informed the Department on 27.07.2015 and thereafter filed a refund claim under section 11B as made applicable to service tax by Section 83 of the Finance Act, 1994 on 12.07.2016. A show cause notice was issued to the appellant asking why the refund was filed after one ....
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....d ignoring the fact that the refund claim under Section 11B was filed after a period of one year which is beyond the limitation under that section. 3. Ld. DR would submit that the limitation clause under section 11B would squarely apply in every case where the refund claim is filed after due date. He relies on the case laws of Anam Electrical Manufacturing Company [1997(90)E.L.T. 260 (S.C.)] in which it was held that refund application has to be filed within the time limit and the statutory time limit cannot be extended. He also relies on the case law of CMS Info Systems Limited vs. Union of India [2017 (349) E.L.T. 236 (Bom.)] in which their Lordships held that any claim of refund must be filed as per the refund application and within t....
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....lf is concerned, Officers have no jurisdiction whatsoever and therefore any refund claim under Section 11B has to be rejected. He would further argue that this issue of jurisdiction was not discussed or argued in any of the case laws relied upon by the Ld. Counsel for the appellant. However, this issue was discussed at length and decided by a nine Member Constitutional Bench of Hon'ble Supreme Court in the case of Mafatlal Industries Limited vs. Union of India [1997(89)E.L.T. 247 (S.C.)] of which paras 104 and 105 reads as follows: "104.In view of these propositions, which have been reiterated by this Court on several occasions and thus constitute sound law, it is clear that actions by way of suits or petitions under Article 226 of....
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....ion for it will not cater to situations where the authorities under the Excise Act assume authority in cases where there is an inherent lack of jurisdiction. This is because, if one were to follow Reddy, J.'s reasoning, the authorities under the Act will have the final say over situations in which they totally lack inherent jurisdiction. In such a situation, there is nothing to prevent the authorities from exercising jurisdiction in cases which are ultra vires the Excise Act but intra vires the Constitution. To that extent, I would hold that in cases where the authorities under the Excise Act initiate action though lacking in inherent jurisdiction, the remedy by way of a suit under Section 72 of the Contract Act or a writ under Article 226 ....
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....as not under the Customs Act, Central Excise Act or Service Tax Act, no provisions of these Acts apply. Therefore, the officers have no jurisdiction to sanction refunds under these Acts. In such a case the proper mechanism for the appellant is to file a Civil Suit under Section 72 of the Contract Act and the limitation as applicable under the Limitation Act would apply in such cases. An alternative mechanism provided for by Hon'ble Apex Court is that the jurisdiction under Article 226 before Supreme Court. Therefore, if the Bench is of the opinion that what is paid is not service tax, then the refund cannot be sanctioned under Section11B. The appellant is free to pursue the alternative remedies provided for under the law as elaborated by Ho....