2014 (11) TMI 755 - AT - Service Tax

Refund claim - period of limitation - repair and maintenance of light, electric installation etc - appellant was under the impression that they are required to pay service tax, they kept paying the service tax till 15.06.2005. Later-on, when they realized that as the street lights are immovable property and they are not required to pay service tax, they filed a refund claim of the service tax erroneously paid by them which was not payable at all. - refund claim was rejected as time barred - Held that - in this case the provisions of Section 11B of the Central Excise Act, 1944 are not applicable as the appellant has paid the service tax which was not payable during the relevant time. Further arguments advanced by the learned A.R. that this Tribunal has not authority to sanction the refund claim, I find that as per Section 35B of the Central Excise Act, 1944, if any person aggrieved by the order of the Commissioner (Appeals) can filed an appeal before this Tribunal. Obviously, the appellant before me is aggrieved by the order of the Commissioner (Appeals), therefore, the appeal is maintainable. - refund allowed.

Summary

Issues:
1. Refund claim rejection as time-barred under Section 11B of the Central Excise Act, 1944.

Analysis:
The appellant filed an appeal against the rejection of their refund claim, contending that during the relevant period, they were not required to pay service tax at all. The appellant had mistakenly paid service tax for maintenance and repairs of immovable property, believing it to be taxable until they realized their error in June 2005. The appellant argued that since the service tax paid was without legal authority, Section 11B of the Central Excise Act, 1944 should not apply. The appellant cited case law to support their position.

The Revenue, represented by the Additional Commissioner, opposed the appellant's contentions, citing the Supreme Court's decision in Anam Electrical Manufacturing Co. and Miles India Ltd. to assert that all refund claims must comply with the statutory period of limitation. The Revenue argued that even if the refund claim were to be entertained, it falls outside the jurisdiction of the Tribunal and should be addressed by higher courts. Therefore, the Revenue requested the dismissal of the appeal.

The Tribunal deliberated on whether the appellant's service tax refund claim was lawful, noting that lower authorities had acknowledged that the service tax was not payable by the appellant during the relevant period. The Tribunal referenced the decision in Hind Agro Industries Ltd. to support the appellant's position, emphasizing that if a tax was paid without legal authority, Section 11B of the Central Excise Act, 1944 would not be applicable. Additionally, the Tribunal dismissed the Revenue's argument regarding the Tribunal's jurisdiction, stating that appeals against the Commissioner (Appeals) can be filed before the Tribunal. Consequently, the Tribunal allowed the appeal, directing the adjudicating authority to implement the order within thirty days.

In conclusion, the Tribunal ruled in favor of the appellant, holding that the service tax paid erroneously without legal authority was eligible for a refund, and Section 11B of the Central Excise Act, 1944 did not apply in this case. The Tribunal also affirmed its jurisdiction to entertain the appeal against the Commissioner (Appeals) decision.