21 - Refund

No. In the case of M/s Natraj and Venkat Associates [2009 (10) TMI 36 - MADRAS HIGH COURT] , it was held that it is clear that if what was paid cannot be taken to be duty of excise, the bar of limitation under Section 11B (1) cannot be applied. This is on account of the fact that the bar of limitation prescribed under Section 11B (1) applies only to "any person claiming refund of any duty of excise and interest". Therefore, I am of the considered view that the claim of the petitioner for refund can be entertained by this Court, since there is no dispute about the fact that no service tax was payable by the petitioner and as a corollary, what was paid by them was not service tax.

Also held that  in the case of ITC Ltd. [1993 (7) TMI 75 - SUPREME COURT OF INDIA], the Supreme Court upheld the view taken by the Division Bench of the Delhi High Court with regard to the question of limitation. On the question of limitation, the Division Bench of the Delhi High Court had observed that "the  duty of excise is that which is levied in accordance with law" and that "any money which is realised in excess of what is permissible in law would be a realisation made outside the provisions of the Act".

Limitation on refund filings: time-bar inapplicable where payments were not service tax and were excess realisations. Limitation under Section 11B(1) applies only to refund claims of a duty of excise and interest; payments not constituting service tax or lawful excise levy are outside that bar and may be refunded. Judicial authorities (M/s Natraj and Venkat Associates; ITC Ltd.) recognise that excess realisations beyond what the statute permits are realisations outside the Act and thus not subject to the statutory limitation on excise refunds.