2010 (4) TMI 671 - AT - Service Tax

Refund limitation service tax paid under advertising agency service - activity is not covered by the definition of Advertising Agency Service they filed the refund claim - defects and deficiencies being pointed out by the Department, they submitted the revised refund claim on17-3-04, it is29-8-03which has to be treated as the date for filing the claim - refund would be governed by the limitation period prescribed under Section 11B, it is only the refund claim - service tax for the month of July 02 paid on 16-8-02, which would be hit by time bar and the remaining claim would be within time - Commissioner (Appeals) s order is incorrect only to the extent it has allowed the refund claim - Revenue s appeal is allowed only to this extent and the Commissioner (Appeals) s order stands modified

Summary

Issues:
Refund claim under service tax - Time limitation under Section 11B of Central Excise Act, 1944 - Tax paid without authority of law.

Analysis:
The case involves a refund claim filed by the Appellant for service tax paid under the impression that their activity fell under "Advertising Agency Service." The Appellant paid Rs. 12,19,287/- as service tax from August 2002 to March 2003. Upon realizing their activity did not fit the definition of advertising agency service, they filed a refund claim on August 29, 2003. The Deputy Commissioner rejected the refund claim as time-barred under Section 11B of the Central Excise Act, 1944. However, the Commissioner (Appeals) set aside this decision, stating that since the tax was collected without authority of law, the limitation period under Section 11B would not apply. The Revenue appealed this decision, arguing that the refund claim for Rs. 82,544/- paid on August 16, 2002, was time-barred.

The Revenue contended that the refund claim falls under Section 11B read with Section 83 of the Finance Act, 1994, making it subject to the prescribed limitation period. They cited the Supreme Court's ruling in Mafatlal Industries Ltd. v. Union of India, emphasizing that a refund claim filed under Section 11B would be governed by its provisions. On the other hand, the Respondent's Counsel acknowledged the applicability of the limitation period under Section 11B but argued that only the part of the claim related to the amount paid on August 16, 2002, would be time-barred, while the rest of the claim would be within the time limit.

After considering both arguments and examining the records, it was established that the refund claim for Rs. 82,544/- paid for July 2002 on August 16, 2002, was time-barred. However, the remaining claim fell within the time limit. Therefore, the Commissioner (Appeals) was found incorrect only in allowing the refund claim for the amount paid on August 16, 2002. Consequently, the Revenue's appeal was allowed to the extent that the Commissioner (Appeals)'s decision was modified to disallow the refund claim for Rs. 82,544/- paid on August 16, 2002.

In conclusion, the judgment clarified the application of the limitation period under Section 11B to the refund claim, distinguishing between the time-barred amount and the valid part of the claim. The decision rectified the error in allowing the refund claim for the time-barred amount, ensuring compliance with the legal provisions governing service tax refunds.