2012 (7) TMI 382 - AT - Service Tax

Refund - appellant paid and deposited Service Tax in respect of commission agent services provided from outside India - Service Tax was not required to be paid by the appellant - no protest was lodged at the time of deposit of said Service Tax Held that - In terms of provisions of section 11B, the refund claim are required to be filed within a period of one years from the relevant date. The relevant date stand defined as date of payment of Service Tax. The refund application filed on 9.12.09 is beyond the period of one year from the date of payment of Service Tax on 17.2.07. It is well settled law that the authorities working under Central Excise Act are bound by the provisions of the Act and cannot grant relief on the basis of justice, equality and good conscious Appeal rejected

Summary

Issues:
1. Liability of Service Tax for commission agent services provided from outside India.
2. Refund claim rejection based on limitation under section 11B of the Act.

Analysis:

Issue 1 - Liability of Service Tax for commission agent services provided from outside India:
The judgment addresses the case where the appellant paid Service Tax for commission agent services provided from outside India during a specific period. It is noted that as per the Hon'ble Bombay High Court judgment, services received from outside India were not liable for Service Tax until a certain date when Section 66 A was introduced in the Finance Act, 1994. The appellant, however, did not contest the payment during the relevant period. The Tribunal observed that the appellant neither paid the Service Tax under protest nor challenged it. Despite the appellant's argument based on the Bombay High Court judgment, the Tribunal emphasized that the authorities must adhere to the provisions of the Act and cannot grant relief based on justice or conscience.

Issue 2 - Refund claim rejection based on limitation under section 11B of the Act:
Regarding the refund claim filed by the appellant, it was noted that the tax was deposited on 17.2.07, and the refund application was submitted on 19.12.09, beyond the one-year period specified under section 11B of the Act. The appellant contended that since the Service Tax was not required to be paid, the limitation period should not apply. However, the Department argued that since the appellant did not challenge the payment or pay under protest, the refund application was time-barred. The Tribunal upheld the rejection of the refund claim based on the limitation period specified under section 11B, emphasizing that the refund application was filed after the prescribed one-year period from the date of payment of Service Tax.

In conclusion, the Tribunal found no merit in the appeal and accordingly rejected it. The judgment highlights the importance of adhering to statutory provisions, especially concerning the payment and refund of taxes, even if there are arguments based on judicial decisions.