1. The appeal is against order dated 19/07/2013 of Commissioner (Appeals), Delhi - I. The appellants were providing taxable services and were registered with the Department. They have filed an application on 02/02/2011 for refund of service tax of Rs. 50,91,030/- paid during the period 2005-2006 to 2009-2010 on the ground that the taxable services were exported out of country. The claim for refund/rebate was made under Notification 11/2005-STdated 19/04/2005 issued under Rule 5 of Export of Services Rules, 2005. The Original Authority rejected the claim as time barred in terms of Section 11B of Central Excise Act, 1944. On appeal, vide the impugned order the Commissioner (Appeals) upheld the original order.
2. The learned Counsel for the appellant submitted that originally the appeal was returned back by the registry in terms of Section 35B of Central Excise Act, 1944 as the Tribunal is not having jurisdiction in deciding appeal against order of Commissioner (Appeals) dealing with rebate issue. The appellants moved the Hon'ble Delhi High Court by way of a writ-petition. The Hon'ble High Court vide order dated 25/04/2014 directed the CESTAT to hear and decide the appeal on merits.
3. The learned Counsel for the appellant submitted that the appellants have exported the service and by mistake deposited the service tax on such services. As such, the Department cannot retain the amount which is not legally due to the Government. The reliance placed by the lower authorities on the provision of Section 11B is not correct. Article 265 of the Constitution clearly mandates that no tax shall be levied or collected except by the authority of law. As the appellant is not liable to pay service tax on export of service, as the amount deposited, erroneously, under mistaken belief, the same should be returned to the appellant.
4. The learned AR submitted that no refund or rebate can be granted based on an application which is filed beyond the statutory time limit prescribed under Section 11B of the Central Excise Act, 1944. Admittedly, the appellants paid the amounts under proper service tax heading and the same has been appropriated to the Government account as tax receipts. The appellants cannot circumvent the provision of law, more specifically, time limits prescribed for claiming any excess tax paid to the Government. The time limit prescribed cannot be extended by any authority as it is a statutory requirement.
5. We have heard both the sides and perused the appeal records. The appellants filed application for rebate on 02/02/2011. The period of payment of service tax is 2005-2006 to 2009-2010. We note that provision of Section 11B of the Central Excise Act, 1944 dealing with refund/rebate have been made applicable to service tax by virtue of Section 83 of the Finance Act, 1994. Any application for refund of tax must be filed before the expiry of one year from relevant date. The limitation as prescribed by the law cannot be extended by any authority as no such relaxation or discretion is provided in the law. The law of limitation is based on public policy. It aims at certainty and advances the cause of doctrine of finality. We agree with the Original Authority in his analysis of limitation by placing reliance on decision of Hon'ble Supreme Court in Antnonysami vs. Arulanandam Pillai (D) by LRs and another : AIR 2001 SC 2967 and in P.K. Ramachandra vs. State of Kerala and another : (1997) 7 SCC 556.
6. Applying the statutory time limit, we find the appellants have preferred the claim after one year of payment of tax. Clearly the claim is hit by limitation.
7. Regarding the submission of the appellant that the amount which is not a tax cannot be retained by the Government, we note that the amount has been paid as service tax under proper heading and was duly appropriated towards the tax liability of the appellant. Any return of the amount collected as tax in terms of provisions of Finance Act, 1994 has to be made in terms of the provision applicable to such collection. We may note here that any money to be returned to the claimant is mainly on the ground that the same is not to be retained by the Government as per the provisions of law. Limitation is part of the law. Even to return an amount which is excess paid over and above the legal obligation (making the excess paid tax as not a tax) the provisions of appropriate tax law has to be applied. The Hon'ble Supreme Court in Miles India Ltd. vs. Assistant Collector of Customs reported in : 1987 (30) E.L.T. 641 (S.C.) held that the tax authorities are bound by the period of limitation as provided by the relevant Act. Hon'ble Bombay High Court in Andrew Telecom (I) Pvt. Ltd. vs. CC & CE, Goa reported in : 2014 (34) S.T.R. 562 (Bom.) held that even a writ-petition under Article 226 of the Constitution of India cannot be decided by overriding a law or legal regime. There is no warrant or justification for holding that a stale or belated claim can be granted in a Constitutional remedy by ignoring a statutory prescription. Hon'ble Karnataka High Court in M.C.I. Leasing (P) Ltd. vs. CCE, Mysore reported in : 2014 (33) S.T.R. 497 (Kar.) held that when the Act provides a complete mechanism for correcting any errors whether on fact or on law the burden is to work out remedy with four corners of law.
8. The appellants relied on certain case laws in support of their case. We have examined the same. In Geojit BNP Paribas Financial Services Ltd. vs. CCE reported in, the Hon'ble Kerala High Court was examining the claim of party for refund of service tax paid mistakenly. The Hon'ble High Court was dealing with the case under writ-jurisdiction in terms of Article 226 of the Constitution of India. The Hon'ble High Court held that the amount paid by the party has no colour of tax. However, in the present case we are dealing the claim of refund of amount which was duly paid as service tax, later asserted to be not payable. We are dealing with a statutory appeal of the assessee within the ambit of Finance Act, 1994.
9. In Joshi Technologies International, Inc. - India Projects (SCA No. 2556 of 2015 decided on 16/06/2016), the Hon'ble Gujarat High Court was examining refund of education cess paid under a mistake of law. The Hon'ble High Court was considering Special Civil Application filed challenging the original order of rejection of claim. It was observed that the claim for amount paid under a mistake of law being outside the purview of the enactment, can be made either by way of a suit or by way of a writ-petition. The Hon'ble High Court held that the petitioner is justified in filing the petition before the court against original order.
10. In Natraj and Venkat Associates vs. Asstt. Commr. of ST, Chennai - II reported in : 2010 (249) E.L.T. 337. The Hon'ble Madras High Court was exercising powers under writ-jurisdiction. Similarly, in Indian Oil Corporation Ltd. vs. CCE, New Delhi reported in : 2010 (256) E.L.T. 232, the Hon'ble Punjab and Haryana High Court relied on the provisions of Article 226 of Constitution and general principles of law and equity and held that State cannot unjustly enrich itself.
11. In Sales Tax Officer, Banaras and others vs. Kanhaiya Lal Makund Lal Saraf (AIR 1959 SC 135) the Hon'ble Supreme Court was examining the applicability of Section 72 of Indian Contract Act to the said case. The Apex court was examining various legal principles relating to estoppels, equity etc. to decide on the applicability of the said provision. In Shri Vallabh Glass Works Ltd. and another vs. Union of India and others : (1984) 3 SCC 362, the Hon'ble Supreme Court was dealing with the provisions of Article 226 of the Constitution for refund of excess paid amount with reference to limitation. The Apex court was dealing with a special leave petition ag
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ainst judgment of Hon'ble Gujarat High Court passed under powers of Article 226 of the Constitution. 12. We have noted earlier in this order, the Tribunal can exercise powers within the provisions of Finance Act, 1994 when dealing the statutory appeals relating to service tax matters. The decision of Hon'ble Bombay High Court in Andrew Telecom (I) Pvt. Ltd. (supra) brings out the legal provisions more clearly. Having examined the various case laws, legal provisions and the powers of the Tribunal we are of the considered view that the appellant's claim cannot be held to be validly made. 13. In view of the above discussion and analysis, we find that the claim filed by the appellant is clearly hit by limitation in terms of Section 11B of the Central Excise Act, 1944 and accordingly we hold the appeal is without merit. The same is rejected.