TaxTMI 
TaxTMI 
2024 (6) TMI 505
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....l year Refund claimed amount(In Rs.) 1. 21.01.2021 01.04.2015 to 31.03.2016 2015-16 5,03,39,066/- 2. 01.04.2016 to 31.03.2017 2016-17 4,35,61,218/- 3. 01.04.2017 to 31.03.2018 2017-18 82,56,361/- 4. 02.02.2021 03.03.2021 01.04.2011 to 31.03.2012 2011-12 1,74,72,827/- 5 01.04.2012 to 31.03.2013 2012-13 1,83,15,785/- 6. 01.04.2013 to 31.03.2014 2013-14 1,93,18,216/- 7. 01.04.2014 to 31.03.2015 2014-15 1,82,43,330/- 8. 01.04.2007 to 31.03.2008 2007-08 91,81,154/- 9. 01.04.2008 to 31.03.2009 2008-09 1,07,72,272/- 10. 01.04.2009 to 31.03.2010 2009-10 98,79,438/- 11. 01.04.2010 to 31.03.2011 2010-11 1,00,65,085/- Total 21,54,04,752/- 4. The refun....
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....ervice tax return and paying service tax on self-assessment, it does not mean that it has no right to claim refund on the ground that the tax was paid erroneously. 7.3 The Supreme Court's pronouncement that a members' club is not subject to service tax is an interpretation of law, which is applicable to all taxpayers, whether or not they were before the Supreme Court in the proceeding which led to this pronouncement. 7.4 Even if the one-year limitation period in Section 11B of the Central Excise Act is taken to be applicable to the appellant's case, the date on which the mistake was discovered should be the starting point of limitation. Gujarat High Court in Indo-Nippon Chemicals Co.Ltd. Vs. Union of India 2005 (185) ELT 19 (Gujarat) has held that sub-section (2) of Section 29 of the Limitation Act provides that the provision of Section 4 to 24 (which includes Section 17) shall apply to special law in so far as and to the extent to which they are not expressly excluded by such special law. There is no such exclusion in Central Excise Act. Accordingly, the Court held that the limitation period will start when the mistake was discovered. The Supreme Court in Assistant Commissio....
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....C Ltd. (supra) on the issue of refunds. In view of the settled principle of law that legal grounds can be raised at any stage, more particularly the law declared by the highest judicial forum being the law of the land needs to be followed in letter and spirit. While considering the present appeal, we cannot ignore the binding effect of the law as declared by the Supreme Court and follow the same irrespective whether or not the said decision has been taken note of by the Authorities below and hence we find no justification in the objection raised by the learned Counsel for the appellant. Accordingly, the objection is rejected. 11. In support of our decision, we would like to rely on the decision in the case of Shiv Naresh Sports Ltd. Vs. Commissioner, Service Tax, Delhi-III 2022 (6) TMI 916 -CESTAT-New Delhi , where this Tribunal agreed with the submission of the Authorised Representative that the issue regarding absence of challenge to self-assessment by the appellant in the light of the decision of the Apex Court in ITC Ltd. (supra), though was not raised earlier but being a legal issue, the same can be raised. In Asstt. Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch Sto....
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....or is maintainable or whether the appellant is entitle to claim the refund at all. The law on the refund claims have been settled by the Supreme Court in ITC Ltd. (supra) that refund can be sanctioned only in pursuance of the assessment made and not de hors the assessment. The principle was laid down in the case of Priya Blue Industries versus Commissioner of Customs 2004 (172) ELT 145 (SC) under the provisions of the Customs Act and thereafter, in the case of Collector of Central Excise versus Flock India Private Ltd. 2000 (120) ELT 285 (SC) a case under Central Excise Act. Later, in the case of ITC Limited (supra), the issue considered was whether the refund could be sanctioned without challenging the self assessment and it was conclusively held that all assessments, including self assessments are appealable and therefore, unless the same is modified, no refund could be sanctioned so as to alter the assessment on the principle that refund proceedings are in the nature of execution proceedings and they cannot be used to determine the liabilities of the parties. The relevant para from the decision in ITC Limited (supra) is as under:- "44. The provisions under Section 27 ca....
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.... High Court in B.T (India) Pvt Ltd. (supra) however, here the Department had rejected the refund claim on the ground that the services did not qualify as export of services. The Delhi High Court holding that the decision of the Apex Court in ITC Limited applies to the service tax refund and therefore, they have to be allowed as per the assessment made including the selfassessment on the same analogy that the refund claims are in the nature of execution proceedings. The observations of Delhi High Court in B.T. (India) Pvt. Ltd. (supra) is quoted below:- "66. In our considered view, unless the self-assessed return, as submitted had been questioned, re-opened or re-assessed and the assertion of the petitioner of the services rendered by it qualifying as an "export of service‟ questioned or negatived in accordance with the procedure prescribed under the Act, its claim for refund could not have been negated. As was observed by the Supreme Court in ITC Limited, a self-assessed return also amounts to an „assessment‟ and unless it is varied or modified in accordance with the procedure prescribed under the relevant statute, the same cannot possibly be questioned i....
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....en decided in M/s Kalyan Toll by this Tribunal in light of the opinion of the Jurisdictional High Court in the case of B. T. (India) Pvt. Ltd. (supra). 16. Considering the facts of the present case as noted above, the appellant paid the service tax voluntarily and in the absence of any challenge the assessment became final. Following the law that refund can be allowed on the basis of the assessment made and assessment cannot be altered in the refund proceedings as they are merely in the nature of execution proceedings, the present refund claim by the appellant is not maintainable without challenging the assessment. 17. Another aspect on maintainability of the refund claims by the appellant on the basis of the judgement of the Apex Court in Calcutta Club Limited (supra), where they were not party requires consideration with reference to the decision of the Apex Court in Mafatlal Industries Ltd. Vs. Union of India 1997 (89) ELT 247 (SC). The question was framed in paragraph 22 of the judgement as follows:- "22. There is as yet a third and an equally important category. It is this : a manufacturer (let us call him "X") pays duty either without protest or after registeri....
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....he case of another person. The Union of India denies that such a person can plead payment of duty under a mistake of law within the meaning of Section 72 of the Contract Act. It also denies that such a writ petition or a suit can be filed within three years of such "discovery of mistake of law". 18. The question was answered in paragraph 99(iv) of the judgement 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. ............ (iv) is not open to any person to make a refund claim on the basis of a decision of a Court or Tribunal rendered in the case of another person. He cannot also claim that the decision of the Court/Tribunal in another person's case has led him 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 disco....