AI Drafter 
TaxTMI 
TaxTMI 
2024 (10) TMI 222
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....in both the Appeals is that the Appellants had paid Service Tax on reverse charge basis during the financial year 2016- 17 and 2017-18 in respect of 'Erection, Commissioning & Installation service' rendered by M/s Sterlite Power Transmission Ltd (hereinafter referred to as M/s Sterlite). Later on, on realizing that M/s Sterlite had already remitted 100% of Service Tax on services rendered to the Appellant, they filed refund claim in respect of aforesaid amounts. The reason for payment on reverse charge basis was that the Appellants were under the impression that they were required to pay Service Tax on reverse charge basis by treating their service provider, which was a Joint Venture (JV) of M/s Sterlite & M/s Continental Transtech Pvt Ltd, as an Association of Persons (AOP) and were therefore required to pay the Service Tax under reverse charge mechanism in terms of provisions under relevant rules and notifications. 3. The Original Authority, inter alia, examined the provisions of Notification 15/2012-ST dt.17.03.2012 and, inter alia, observed that in respect of services provided or agreed to be provided by way of works contract by any individual, Hindu Undivided Family or prop....
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....rmissible time, Appeals were rejected. 6. Learned Counsel for the Appellant has mainly contested the Impugned Orders on the grounds that they had paid the Service Tax under misconception of law and later on, when they were informed by their service provider that they have already remitted 100% of Service Tax since they were liable to discharge the same by their being a Private Limited Company and not an AOP, Appellants claimed refund for the amount paid twice. His main contention is that the Orders passed by the Adjudicating Authority and Appellate Authority are bad in law in view of various judicial pronouncements including the Hon'ble Supreme Court. It was further reiterated in the grounds of Appeal that the Order passed by the Adjudicating Authority was only on the ground that the Appellant failed to file refund claims within time limit and therefore, hit by time bar. Whereas, in the light of the judgment passed by this Bench in the case of M/s Credible Engineering Construction Projects Ltd Vs CCT, Hyderabad [2022 (9) TMI 844 - CESTAT Hyderabad], their Appeals are liable to be allowed. He further submits that the said judgment was appealed against before Hon'ble Telangana Hig....
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....ning refund including limitation would have to be regulated by the provisions under Section 11B in this case as well. Therefore, per majority order, the Appeal was dismissed as time barred as the Third Member agreed with the views of Member (Technical). In essence, refund of duty, even under mistake of law or being illegal levy will be subjected to statutory limitations under the statute under which refund claim has been filed. 9. Learned AR also submits that various judgments cited by the Appellant are not applicable to the facts of the case and can be distinguished. In fact, he has submitted that there are a plethora of judicial pronouncements where it has been held that refund of the nature, as covered in the present case, would be within the purview of Section 11B. Therefore, even if it is presumed that the Service Tax was paid erroneously or mistakenly, it will still be regulated by the provisions under Section 11B, which has clearly not been followed by the Appellant. He has also relied on the judgment of Hon'ble Delhi High Court in the case of HT Media Limited Vs CST [2017 (6) GSTL 266 (Del)], wherein, inter alia, the Court had distinguished the earlier order of Hon'ble H....
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....xamined the rejection from the point of view of limitation and after relying on certain judgments of Hon'ble Supreme Court, he came to the conclusion that in the facts of the case, the claims were hit by time bar and therefore, the Appeals were rejected. 13. The Appellants have mainly contended that since they have paid the Service Tax twice to the extent of 50% under misconception or mistake of law, the time limit prescribed would not be applicable and hence their claims were not hit by time bar. In so far as the merit is concerned, they have claimed that they had adduced sufficient evidence regarding double payment of tax. In the grounds of Appeal, the Appellants have mainly contended the limitation issue. The Appellants have submitted that the Department has not disputed that tax has been paid twice, which is not correct as the Orders-in-Original clearly rejected the claim on merits as well. Since they have not brought any additional grounds in their support that they had wrongly paid the duty applicable on RCM basis, their claims for refund are rightly held to be not eligible by the Original Authorities. I do not find any substantive ground in their grounds of Appeal to inte....
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....is per incuriam. In fact, in the recent judgment in the case of MGM International Exports Ltd Vs Assistant Commissioner of ST, Chennai-I [2021-TIOL-989-HC-MAD-ST], the Hon'ble Madras High Court differed with the decision of 3E Infotech case and upheld the applicability of limitation for refund under Section 11B, after considering the majority decision of Hon'ble Supreme Court in the case of Mafat Lal Industries Vs UOI (supra) and in the case of Assistant Collector of Cus Vs Anam Electrical Manufacturing Co [1997 (90) ELT 260 (SC)]. 16. Therefore, most of the case laws cited by the Appellant are one where the time limit was not considered applicable when the tax has been paid under mistake of law but in most of these judgments, the majority decision of Hon'ble Supreme Court in the case of Mafat Lal Industries Vs UOI (supra) has not been considered. Most of the judgments of the Tribunal cited by the Appellants are also based on either decision in the case of KVR Construction (supra) or in the case of 3E Infotech Vs CESTAT, Chennai (supra). This Bench, in the case of Karvy Investor Services Ltd Vs CCE & ST, Hyderabad- II [2016 (43) STR 610 (Tri-Hyd)] relied upon by the Appellants h....
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....atute itself and has no power to allow any refunds outside the statutory provisions governing limitation. It is settled position that the authorities created by the statute are the creatures of the statute and have to operate within the purview of the said statute under which they have been created. Therefore, the Original Authorities have rightly held that these claims are hit by time limit and therefore, liable to be rejected. 18. I also find that learned AR has relied on many case laws, which explicitly covers the situations where irrespective of whether paid under mistake of law or otherwise, the limitation would be applicable. Apart from relying heavily on the majority decision of Hon'ble Supreme Court in the case of Mafat Lal Industries Vs UOI (supra), the reliance placed by learned AR on the following judgments, which are also quite relevant to the present issue and its ratio are applicable to the facts of the present case:- a) MGM International Exports Ltd Vs Assistant CST, Chennai (2021-TIOL- 989-HC-MAD-ST) b) Cannanore Handloom Exports Vs CCE, C & ST, Calicut [2021 (44) GSTL 345 (Ker)] c) Uniroyal Marine Exports Ltd Vs CCE, Kozhikode [2021 (5....