TaxTMI 
TaxTMI 
2026 (4) TMI 1229
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....s of appellant as well as M/s. BPCL it was noticed that the actual area occupied by M/s. BPCL/the service recipient was 5169.472 SQMTSs in stead of 6500 SQMTSs as was mentioned in the agreement. Thus the service tax deposited by the appellant on the excess land area in respect of bills raised for the period 2013-14 to 2017-18 amounting to Rs.30,31,839/- was paid in excess. Accordingly, the said refund claim was filed. However, vide Show Cause Notice No.22/2022-23 dated 20.04.2023, the refund claim was proposed to be rejected for being time barred in terms of provisions of section 11B of Central Excise Act, 1944 as is made applicable in relation to service tax by virtue of Section 83 of the Finance Act, 1994. The said proposal was initially confirmed vide Order-in-Original No. 02/2024 dated 28.062024. The appeal against the said order has been dismissed vide the aforesaid Order-in-Appeal. Being aggrieved the appellant is before this tribunal. 3. I have heard Shri Prakash Kumar Sinha and Shri Ayush Kumar, learned Advocates for the appellant and Shri Anuj Kumar Neeraj, learned Authorized Representative for the department. 4. Learned counsel for the appellant has submitted that t....
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....l (P) Ltd. Vs. Commissioner of Central Excise and Service Tax reported as 2024 SCC OnLine CESTAT 677 5. While rebutting the submissions, learned Departmental Representative has submitted that the appellant had filed the refund claim of service tax paid for the period 2013-14 till 2017-18 vide the refund claim filed in the year 2022. This fact itself is sufficient to justify the invocation of time bar of Section 11B of Central Excise Act by the adjudicating authorities below. Otherwise also there was no document produced to show that the area of lease was less than for what the appellant had paid tax. The expenditure of area does not match even in the invoices raised by the appellant for Financial Year 2013-14 and 2017. Otherwise also, the said fact had come to the notice of the appellant vide audit dated 05.02.2019. Still the refund claim was filed after 3 years of the said audit report. The appellant was required to file the refund claim in reasonable time to support the entitlement that too with the cogent evidences. The rejection thereof is a fairly justified. With these submissions the appeal is prayed to be dismissed. 6. While rebutting these submissions learned counsel ....
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....ase though the land leased out for rendering taxable service of renting of immovable property, was 6500 SQMTSs as mentioned in the agreement between appellant and M/s. BPCL executed in the Year 1983 but there is contradiction about the area of land during the period under question and the service tax paid thereupon. Invoices on record shows that in the Year 2013 the leased area is mentioned to be 6651.92 SQMTSs (515.92 + 1494), 5718.640 SQMTSs in the Year 2013-14 and 2017 respectively. No evidence has been produced by the appellant for undoing the said contradiction. Above all, no evidence is produced to show that the excess rent received by the appellant and service tax to that extent has ever been returned by the appellant to M/s. BPCL. 7.5 The another apparent and admitted fact is that the refund claim itself has been filed under Section 11B of Central Excise Act. In the present case, as already observed above, despite appellant got the knowledge about access tax paid in the year 2019 the refund claim filed in the year 2022 amounts to the negligence and latches on part of the appellant. Even in tax matters Hon'ble Supreme Court in the case of M/s. Salonah Tea Co. Ltd. Vs. Sup....
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.... "Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports. Of course, the discretion has to be exercised judicially and reasonably." What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher and Maharashtra SRTC v. Shri Balwant Regular Motor Service. Sir Barnes had stated: "Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly....