TaxTMI 
TaxTMI 
2023 (5) TMI 1023
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....e impugned order Commissioner (Appeal) has held as follows: "The order in Original No 09/ST/Ref/Dn Wardha/2015-16 dated 28.12.2015 and order in Original No 08/ST/Ref/Dn Wardha/2015-16 dated 28.12.2015 passed by the assistant commissioner, Central Excise, Customs & Service tax, Division Wardha are upheld." 2.1 Appellant is having service tax registration No- AACB9272AST002 under the category of Business Auxiliary service, Works Contract services, Goods Transport Agency Services, Manpower supply agency services, and other taxable services other than the 119. They are also registered under Central Excise and engaged in the business of manufacture of Chemical Fertilizers. The appellant had received services from GTA for transportation of raw materials from different sellers to their Pulgaon factory and also for transportation after manufacturing of Chemical Fertilizers which is sent to different locations and the appellant had paid the Service Tax on the services of GTA under RCM. 2.2 The appellant filed two refund claim applications regarding freight inward and freight outward for the period pertaining to April 14 to March 2015 ( for Rs. 19,08,453/-) and period April 2015 to July....
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....ring hearing of the appeal." 3.2 For the above reason these appeals could have been dismissed under Rule 20 of the CESTAT Procedure Rules 1982 reproduced below, for non prosecution or could have been decided ex-parte after hearing the authorized representative. "RULE 20. Action on appeal for appellant's default. - Where on the day fixed for the hearing of the appeal or on any other day to which such hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or hear and decide it on merits." 3.2 Heard the authorized representative Shri Badhe Piyush Barasu, Deputy Commissioner. He reiterated the findings recorded in the impugned order. 4.1 I have considered the impugned orders along with the submissions made in appeal and during the course of arguments. 4.2 Appeal No ST/86554/2018 is against the impugned order, wherein the refund claim filed by the appellant has been held to be time barred. For arriving at the said finding impugned order records as follows: 24. The issue to be decided is whether the appellant is eligible for refund under Notification No. 25/2....
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....ssioner, reported in 2015 (320) E.L.T. A197 (Guj.), The Hon'ble High Court has discussed the issue relying upon the decision of Hon'ble Apex Court and held as under. "The admitted facts are that the refund has been claimed beyond the period of limitation i.e. three years after expiry of the date of refund. In the case of Collector of C.E., Chandigarh v. Doaba Cooperative Sugar Mills reported in 1988 (37) E.L.T. 478 (S.C.), the Apex Court held that so far as the refund of duty under the Customs Act, 1962, the Customs Authorities are bound by the limitation provided under the Act and after period of limitation, no refund is permissible. The relevant observations in the case of Collector of C.E., Chandigarh v. Doaba Co-operative Sugar Mills (supra) reads as under : "(6) It appears that where the duty has been levied without the authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rules framed thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the de....
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....l Excise Act, 1944 has to be mandatorily followed - Tribunal functioning under Central Excise Act/Customs Act, cannot go beyond the statute and relax time limitation prescribed as per law - Refund claim hit by limitation and correctly rejected by adjudicating authorities - Impugned order upheld - Section 11B of Central Excise Act, 1944 as applicable to Service Tax vide Section 83 of Finance Act, 1994. 32. Further I also rely on the decision of the Hon'ble Bombay High Court in the case of M/s Andrew Telecom (I) Pvt. Ltd., Vs. CCE, Goa reported in 2014(34)STR 562 (Bom), wherein the Headnote and the relevant para 19 and 20 is reproduced below:- "Refund - Limitation - Service Tax on export of services - For period May, 2004 to March, 2006 discharged in May, 2006 - That tax was not imposable, and relying on clarification by Department, its refund claim submitted on 28-4-2010 - HELD: Case was covered by Explanation (B)(f) of Section 11B(1) of Central Excise Act, 1944 as applicable to Service Tax vide Section 83 of Finance Act, 1994 - Refund claim was not sustainable as it was filed beyond one year from date of payment of tax -Distinction between unconstitutional and illegal lev....
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.... the period 2013-14. They should have filed the same within one year from the date of payment of Service Tax. The payment of Service Tax for the second half of 2013-14 was 31st March 2014 and the same should have been filed before 31st March 2015. appellant is time barred. Hence the refund claim filed by the 35. In view of the above pronouncements, I find that the issue of applicability of time limitation under Section 11B of the central Excise Act 1944 argued in the present case is squarely covered in above mentioned decisions which clearly held that departmental authorities including the Tribunal are bound by the statute and when the statute does not provide for refund beyond period of limitation, there is no question of allowing the refund." 4.3 Undisputedly the refund claim has been filed by the appellant much beyond the prescribed period of limitation as per the Section 11 B of the Central Excise Act, 1944 as made applicable to the cases of Service Tax by Section 83 of the Finance Act, 1994. The finding recorded by both the authorities, on this aspect cannot be said to be perverse and should not be interfered with. The impugned order has relied upon series of the decision....
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.... deal with the period 1-4-2014 to 20-8- 2014. The levy, assessment and collection of Service Tax and to the extent permissible by law is with the aid of the Central Excise Act, 1944 and by certain provisions of the Finance Act, the Central Excise Act, 1944 has been made applicable in relation to the refund of amount of Service Tax paid by the assessee. 29. On this issue, I would like to rely on the decision of the Hon'ble Tribunal in the case of M/s Benzy Tours and Travels Pvt. Ltd., Vs. CCE, Mumbai reported in 2016(43)STR 625 (Tri.- Mumbai), the headnote of which is reproduced below:- .... 30. Further I also rely on the decision of the Hon'ble Bombay High Court in the case of M/s Andrew Telecom (I) Pvt. Ltd., Vs. CCE, Goa reported in 2014(34)STR 562 (Bom), wherein the Headnote and the relevant para 19 and 20 is reproduced below:- ... 31. In case of ASSISTANT COMMR. OF S.T., CHENNAI Versus NATARAJ AND VENKAT ASSOCIATES reported at 2015 (40) S.T.R. 31 (Mad.), the Hon'ble High court dealing with the identical issue held as under. .... 32. In view of the above pronouncements, I find that the issue of applicability of time limitation under Section 11B o....
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....e supplier, i.e. the appellant. Also, the lower authority has clearly in his order stated that in the Cost Audit report for the year 2013-14, the freight and transportation charges are included in that the costing of fertilizers from which it is clearly established incidence of duty has been passed by the appellant to the buyer of the goods. The appellant is therefore not entitled to receive the refund amount. The Lower authority's order the said refund claim to be credited to Consumer Welfare Fund is accordingly upheld. 36. Now coming to the Refund claim of Rs. 8,06,550/-pertaining to the period April 2015 to July 2015, which includes service tax on inward freight of Rs. 3,23,611/- and service tax on outward freight Rs. 4,82,939/-. Applying the same ratio as mentioned above, the refund amount of Rs. 3,23,611/- pertaining to Inward Freight has been rightly rejected by the Lower authority. As regards the Outward freight, the refund of the Outward freight is to be sanctioned but to be credited to the Consumer welfare fund." 4.5 I find that part of refund claim has been rejected by the impugned order on the ground of time bar on the reasoning similar to one which was adopted ....
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....' and 'literal interpretation'. We may reiterate at the cost of repetition that strict interpretation of a statute certainly involves literal or plain meaning test. The other tools of interpretation, namely contextual or purposive interpretation cannot be applied nor any resort be made to look to other supporting material, especially in taxation statutes. Indeed, it is well-settled that in a taxation statute, there is no room for any intendment; that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification. Equity has no place in interpretation of a tax statute. Strictly one has to look to the language used; there is no room for searching intendment nor drawing any presumption. Furthermore, nothing has to be read into nor should anything be implied other than essential inferences while considering a taxation statute. 26. Justice G.P. Singh, in his treatise 'Principles of Statutory Interpretation' (14th ed. 2016 p.-879) after referring to Re, Micklethwait, (1885) 11 Ex 452; Partington v. A.G., (1869) LR 4 HL 100; Rajasthan Rajya Sahakari Spinning & Ginning Mills Federation Ltd. v. Deputy CIT, Jaipur, (2....
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....e imposed without words clearly showing an intention to lay the burden and that equitable construction of the words is not permissible [Ormond Investment Co. v. Betts, (1928) AC 143]. Considerations of hardship, injustice or anomalies do not play any useful role in construing taxing statutes unless there be some real ambiguity [Mapp v. Oram, (1969) 3 All ER 215]. It has also been said that if taxing provision is "so wanting in clarity that no meaning is reasonably clear, the Courts will be unable to regard it as of any effect [IRC v. Ross and Coutler, (1948) 1 All ER 616]." Further elaborating on this aspect, the Learned author stated as follows : "Therefore, if the words used are ambiguous and reasonable open to two interpretations benefit of interpretation is given to the subject [Express Mill v. Municipal Committee, Wardha, AIR 1958 SC 341]. If the Legislature fails to express itself clearly and the taxpayer escapes by not being brought within the letter of the law, no question of unjustness as such arises [CIT v. Jalgaon Electric Supply Co., AIR 1960 SC 1182]. But equitable considerations are not relevant in construing a taxing statute, [CIT, W.B. v. Central India Industr....
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.... should be construed in favour of the subject. In subsequent cases, this Court diluted the principle saying that mandatory requirements of exemption clause should be interpreted strictly and the directory conditions of such exemption notification can be condoned if there is sufficient compliance with the main requirements. This, however, did not in any manner tinker with the view that an ambiguous exemption clause should be interpreted favouring the revenue. Here again this Court applied different tests when considering the ambiguity of the exemption notification which requires strict construction and after doing so at the stage of applying the notification, it came to the conclusion that one has to consider liberally. 28. With the above understanding the stage is now set to consider the core issue. In the event of ambiguity in an exemption notification, should the benefit of such ambiguity go to the subject/assessee or should such ambiguity should be construed in favour of the revenue, denying the benefit of exemption to the subject/assessee? There are catena of case laws in this area of interpretation of an exemption notification, which we need to consider herein. The case of ....
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....sh that the burden of the tax paid has not been passed on to the consumer of the goods or services. In case the claimant fails to establish the same the refund even if admissible needs to credited to Consumer welfare Fund. Hon'ble Supreme Court has in case of Mafatlal Industries [1997 (89) ELT 247 (SC)] held as follows: "99. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment. (i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff - whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter - by mis-interpreting or mis-applying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by mis-interpreting or misapplying any of the rules, regulations or notifications issued under the said enactme....
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.... claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. This principle is, however, subject to an exception : where a person approaches the High Court or Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be re-opened on the basis of a decision on another person's case; this is the ratio of the opinion of Hidayatullah, CJ. in Tilokchand Motichand and we respectfully agree with it. Such a claim is maintainable both by virtue of the declaration contained in Article 265 of the Constitution of India and also by virtue of Section 72 of the Contract Act. In such cases, period of limitation would naturally be calculated taking into account the principle underlying Clause (c) of sub-section (1) of Section 17 of the Limitation Act, 1963. A refund claim in such a situation cannot be governed by the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be, since the enactme....
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....im to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment of levy has become final in his case, he cannot seek to reopen it nor can he claim refund without reopening such assessment/order on the ground of a decision in another person's case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund. (v) Article 265 of the Constitution has to be construed in the light of the goal and the ideals set out in the Preamble to the Constitution and in Articles 38 and 39 thereof. The concept of economic justice demands that in the case of indirect taxes Central Excises duties and Customs duties, the tax collected with....