TaxTMI 
TaxTMI 
2019 (8) TMI 1177
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....(hereinafter referred to as "the CESTAT"). 4. The appellant in the aforesaid appeals is the authorised dealer of Hyundai brand of motor vehicles and has been providing taxable services of "business auxiliary services", "service of motor vehicle" and "transport of goods" by road. 5. The controversy involved in the present appeals has arisen due to the rejection of the application preferred by the appellant for refund of the Service Tax deposited by it on account of "logistic charges" during the period 2009-10 to 2010-11. 6. Before the Assistant Commissioner (Service Tax), Central Excise Division-I Lucknow the appellant moved an application for refund in respect of its registered premises at Mahanagar and Head Quarters, claiming refund of Rs. 9,39,413/- and Rs. 10,81,034/- respectively, stating that the appellant was already paying Value Added Tax (hereinafter referred to as "VAT") as assessed by the Commercial Tax Department on the logistic charges, and therefore both VAT and Service Tax could not be levied simultaneously. Both the refund claims were rejected by the Assistant Commissioner by passing the order dated 30/11/2012, on the ground that the application was filed "b....
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....5/01/2014 and 26/03/2014 and subsequently, it has been submitted that, Trade Tax Revisions have been preferred before the High Court being Trade Tax Revision No.43 of 2014 and Trade Tax Revision No. 70 of 2014. which are pending consideration. 13. With regard to the imposition of Service Tax the appellant, on rejection of the appeal by the Commissioner (Appeals) by means of order dated 20/08/2014, preferred a second appeal before the CESTAT which was rejected on 10/08/2018. The said order dated 10/08/2018 has been impugned before us in the present appeals. 14. A perusal of the impugned order would indicate that the CESTAT after considering the submissions of the appellant and the Revenue came to conclusion that the refund claimed by the appellant under section 11 B of the Act, 1944 was to be claimed within one year, and as the application for refund was filed beyond the period of limitation it was time-barred and on this ground alone the appeal of the appellant has been rejected. 15. The learned counsel for the appellant with regard to imposition of Service Tax has vehemently urged that in light of the fact that the charges within the expression "logistic charges" have alr....
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.... 18. The CESTAT held that an application for refund is governed by provisions section 11 B of the Act, 1944, wherein the limitation of one year has been prescribed and there being no provision for extension of the said period, it further held that the refund was filed beyond the period of limitation, and on this ground alone, rejected the appeal. 19. The following substantial questions of law arise in these cases for our consideration are as follows:- 1. Whether the CESTAT was Justified in holding that Section 11-B of the Act, 1944 was attracted in the present case where there is a limitation of one year for claiming refund ? 2. Whether the appellant was entitled for refund of the amount deposited as Service Tax? 20. The controversy with regard to the issue as to whether a transaction would be amenable to "Service Tax" or "VAT" has drawn the attention of the Hon'ble Supreme Court in a number of cases. In the case of Bharat Sanchar Nigam Ltd vs Union of India (supra), where the issue was as to whether on the sale of SIM card, Sales Tax could be leviable or the same was a service subjected to Service Tax , the Hon'ble Supreme Court after extensively deal....
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....n 11B of the Act, 1944 it is clear that an application for refund has to be made within a period of one year from the relevant date. The appellant made an application for refund on 21/04/2012 for the refund of Service Tax deposited for the financial year 2009-10 and 2011-12 (April - June). 23. In the reply submitted by the appellant to the show cause notice, the fact that the application for refund was moved beyond the period of limitation has not been disputed by him, but he had raised the plea that the Service Tax was deposited under protest, and therefore, according to the second proviso of Section 11 B of the Act of 1944, the time period would not hinder the refund in favour of the appellant. While arguing before CESTAT he had himself conceded that the "Service Tax" was not deposited under protest, thereby disentitling him from the benefit of the second proviso of Section 11 B of the Act. . 24. The Hon'ble Apex Court, recently, while considering the period of limitation as prescribed under Section 11B of the Act, 1944 in the case of Western Coalfields Ltd v. Commissioner of Central Excise Trichy/Madurai, AIR 2019 SC 1069 has observed as under :- "11. It is no....
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....d the difference between the rights of a manufacturer to claim refund and the right of the buyer to claim refund as separate and distinct. Moreover, under Section 4 of the said Act, every payment by the manufacturer whether under protest or under provisional assessment was on his own account. The accounts of the manufacturer are different from the accounts of a buyer(distributor). Consequently, there is no merit in the argument advanced on behalf of the respondent that the distributor was entitled to claim refund of "on-account" payment made under protest by the manufacturer without complying with Section 11-B of the Act." 13. It was further held as under:- "Having come to the conclusion that the respondent was bound to comply with Section 11B of the Act and having come to the conclusion that the refund application dated 11-2-1997 was time-barred in terms of Section 11B of the Act, we are not required to go into the merits of the claim for refund by the respondent who has alleged that it has not passed on the burden of duty to its dealers." 14. It may be appropriate to notice that the view earlier expressed by the two-Judge Bench of this Court in....