2020 (3) TMI 1336

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....ng regard to the facts and circumstances of the case, I reject the refund claim of the noticee" 2.1 Appellant have vide their letter dated 26.04.2008 filed in the office of jurisdictional Deputy Commissioner on 06.06.2008 claimed refund of Rs. 24,62,063/- paid by them during the period 12.07.2005 to 10.07.2006. For filing the refund claim they relied upon the CBEC's Letter F No 332/35/2006-TRU dated 01.08.2006. 2.2 Since the refund claim was filed beyond the period of one year from the relevant date as defined under Section 11B of the Central Excise Act, 1944, the same was rejected by the jurisdictional Assistant Commissioner. 2.3 Aggrieved by the order of Assistant Commissioner, Appellants filed the appeal before Commissioner (Appeal). ....

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....nor has any written request for adjournment been received. 4.2 Since none is appearing in the matter, Shri Bhasha Ram, Authorized Representative for the revenue was heard. 4.3 Learned Authorized Representative while reiterating the findings recorded in the impugned order submitted that- * Appellant had paid the Service Tax amounting to Rs. 24,62,063/- during the period 12.07.2005 to 10.07.2006 under the taxable category of "Construction of Complex Service"; * Later on they realized that the tax paid by them was not payable by them and filed the refund claim for the said amount; * The refund claim has been rejected by both the authorities below for the reason that the same had been filed beyond prescribed period of limitation, and al....

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....n it following has been held: 7. What is crucial is that the appellants paid the claimed amount as service tax. They have approached the Jurisdictional Authority of service tax for refund of the said money. It is clear that the Jurisdictional Service Tax Authority is governed by the provisions of Section 11B as the claim has been filed as per the said mandate only. Here, I have specifically asked the learned Counsel for the appellant under what provision of law he is seeking there turn of the money earlier paid. He admitted that the claim has been preferred in terms of the provisions of Section 11B. If that being the case, it cannot be said that except for limitation other provisions of Section 11B will be made applicable to the appellant....

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....excise duty can be made only under and in accordance with Section 11B in the forms provided by the Act. The Apex court further observed that the only exception is where the provision of the Act whereunder the duty has been levied is found to be unconstitutional 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....