1. The present appeal is directed against the impugned order dt. 03/03/2017 passed by the Commissioner (Appeals) whereby the Commissioner(Appeals) has rejected the refund claim of the appellant on time bar.
2. Briefly, the facts of the present case are that the appellant is registered with the Service Tax department for providing taxable services falling under the category of Business and Financial Services. The appellant filed a claim on 30/09/2011 seeking refund of Rs. 37,72,354/- being the service tax paid on late payment charges collected from the customers, which they held that is not liable to service tax. The claim was rejected in toto vide Order-in-original No. 7/2012, on the ground of limitat
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ion and also for the reason that the theory of unjust enrichment has not been proved with supporting evidence. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) and the Commissioner(Appeals) set aside the order-in-original to the limited extent of rejection of refund claim against payments made for the period post-29-09-2010 and the corresponding appeal No. 796/2012 against order-in-original was allowed to the limited extent by way of remand to the original authority for fresh decision. Aggrieved by the order of rejection of refund, for the period post 29/09/2010, the appellant has filed the present appeal.
3. Heard both the parties and perused records.
4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly considering the provisions of Section 11B of the Central Excise Act, 1944. He also submitted that the impugned order is contrary to the binding judicial precedent. He also submitted that the service tax paid under mistaken notion, would not be a tax payable under the law. He further submitted that once tax is not payable under law, there is no authority for the Department to retain such amount. He also submitted that when the said amount paid under mistake of law, the provision of limitation does not apply. In support of his submission, he relied upon the following decisions:-
i. Ashok Shetty & Associates Vs. CCE, Mangalore
ii. CCE (Appeals), Bangalore Vs. KVR Construction [2012 (26) STR 195 (Kar.)]
iii. CCE, Bangalore-III Vs. Motorola India Pvt. Ltd. [2008 (11) STR 555 (Kar.)]
iv. Jain Irrigation Systems Ltd. Vs. CCE, Nashik [2016 (42) STR 377 (Tri. Mumbai)]
v. Jyotsana D. Patel Vs. CCE, Nagpur [2014 (35) STR 77 (Tri. Mum.)]
vi. Sopariwala Exports Pvt. Ltd. Vs. CCE, Vadodara-I [2017(49) STR 195 (Tri. Ahmd.)]
vii. UOI Vs. ITC Ltd. [1993 (67) ELT 3 (SC)]
viii. U. Foam Pvt. Ltd. Vs. CCE [1988 (36) ELT 551 (AP)]
ix. D. Cawsji and Co. Vs. State of Mysore [1978 (2) ELT (J 154) (SC)]
x. KSEB (WP(C) 15508 of 2007
xi. State of Bihar Vs. Kalika Kuer (For per Incuriam)]
5. On the other hand, the learned AR defended the impugned order and submitted that the provisions of Section 11B are applicable for all kinds of refunds under the Central Excise Act and Service Tax. He further submitted that the Hon'ble High Court of P & H in the case of Sarita Handa Exports (P) Ltd. Vs. UOI [2015 (321) ELT 434 (P & H)] has held that if the application for refund is filed beyond the prescribed statutory period, then in view of the judgment of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. Vs. UOI [1997 (89) ELT 247 (SC)], the same cannot be entertained unless the refund was as a consequence of declaration of a provision as unconstitutional. He further submitted that the judgment of the Hon'ble P & H High Court was challenged in the Supreme Court by way of a SLP but the same was dismissed and the judgment of the High Court was upheld. He further submitted that the Division Bench of this Tribunal in the case of Prabhakar C. Suvarna Vs. CCE & ST, Mangalore [2015-TIOL-2576-CESTAT-BANG], decided on 22/09/2015, has held that the refund of service tax paid under mistake, the claim has to be filed within prescribed period of one year and the limitation for claiming the refund cannot be extended in any circumstances including when the payments are made by error of law or under mistake. The Division Bench of this Tribunal has relied upon the following decisions:-
i. CCE, Hyderabad-II Vs. XL Telecom Ltd. [2006-TIOL-1982-CESTAT-BANG]
ii. Asst. Collector Vs. Anam Electrical Manufacturing Co. [2002-TIOL-650-SC-CUS]
iii. Mafatlal Industries Ltd. Vs. UOI [2002-TIOL-54-SC-CX-CB]
iv. MCI Leasing (P) Ltd., Mysore Vs. CCE, C & ST, Mysore [2012-TIOL-54-HC-KAR-ST]
v. Rajasthan State Mines & Minerals Ltd. Vs. CCE, Jaipur-I [2017 (50) STR 183 (Tri. Del.)]
vi. Avanti Feeds Ltd. Vs. CC, Chennai [2007 (213) ELT 280 (Tri. Bang.)]
vii. CCE, Hyderabad-III Vs. XL Telecom Ltd. [2006 (206) ELT 303 (Tri. Bang.)]
viii. Miles India Ltd. Vs. Assistant Collector of Customs [1987 (30) ELT 641 (SC)]
ix. Agro Pack Vs. CCE, Surat-II [2009 (238) ELT 750 (Tri. Ahmd.)]
6. Learned AR further submitted that the decisions relied upon by the appellant are not applicable in the present case. He also submitted that the Division Bench of this Tribunal in the case of Rajasthan State Mines & Minerals Ltd. (supra) has considered various decisions of the High Courts and has come to the conclusion that the Tribunals do not have the powers as the Tribunal has been created under the statute and cannot exercise such sweeping powers which are bestowed in the High Courts. The Hon'ble Tribunal has distinguished the judgment of KVR Construction which was passed in exercise of its writ jurisdiction.
7. After considering the submissions of both the parties and perusal of material on record, I find that the issue required to be decided in the present case is whether the refund claim of service tax filed by the assessee after the period of limitation prescribed under the law is to be sanctioned or not, without raising the issue of limitation. The contention of the learned advocate is that as payment of service tax was a mistake, the period of limitation would not apply in such cases. On the other hand, the Revenue's contention is that the Tribunal, being a creature of statute has to work within the provisions of law and cannot extend the period of limitation as per the provisions under the law. Further the learned AR relied upon the decision of the Supreme Court in the case of Asst. Collector Vs. Anam Electrical Manufacturing (supra) wherein it was held that statutory time limit is applicable to claim for refund of even illegal levies and time limit cannot be extended by any authority.
8. After considering the submissions of both the parties and perusal of the judgments relied upon by both the parties, I find that there is no infirmity in the impugned order which is upheld in view of the judgment of the Hon'ble Supreme Court in the case of Anam Electrical Manufacturing Co. (supra). Therefore, I uphold the impugned order by dismissing the appeal of the appellant