2017 (8) TMI 402 - HC - Service Tax

Refund claim - time limitation - Section 11B of the Central Excise Act, 1944 - Held that - The Appellant does not dispute that it is liable to pay service tax for the services rendered by it. In such a situation, it is abundantly clear that the Appellant has to seek refund of service tax, paid in excess, in terms of and within the limitation period stipulated under Section 11B of that CE Act i.e. before the expiry of one year from the relevant date. The expression relevant date has been defined in clause (f) of Explanation (B) to Section 11B of the CE Act as the date of payment of duty . Since the payment of service tax during the said period was not under protest, the Appellant was unable to take advantage of the second proviso under Section 11B (1) of the CE Act which states that the limitation of one year will not apply where any duty and interest has been paid under protest. Appeal dismissed - decided against appellant-assessee.

Summary

Issues involved:
1. Whether the Customs, Excise and Service Tax Appellate Tribunal was correct in rejecting the plea of the Appellant/Assessee that its claim for refund of the service tax paid under the state of law is barred by limitation in terms of Section 11B of the Central Excise Act, 1944?

Detailed Analysis:
The appeal was filed against an order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) dismissing the Appellant's appeal against the order-in-appeal of the Commissioner of Customs, Excise and Service Tax. The Appellant, engaged in the business of printing newspapers and providing space for advertisements, claimed a refund of excess service tax paid. The Assistant Commissioner allowed a partial refund but rejected the remaining amount as barred by limitation under Section 11B of the Central Excise Act, 1944. The appeal to CESTAT and subsequent legal arguments focused on whether the claim for refund was indeed time-barred (paragraphs 1-6).

The Appellant argued that the CESTAT erred in holding the claim for refund as time-barred, citing previous judgments to support their position. The Respondents, on the other hand, relied on different legal precedents to support their stance. The Court noted that in previous cases examined by the Appellant, the question of whether the levy was payable in the first instance was crucial. However, in the present case, the Appellant did not dispute liability to pay service tax, making the refund claim subject to the limitation period under Section 11B of the CE Act (paragraphs 7-10).

The Court emphasized that the Assistant Commissioner correctly rejected the claim for refund of service tax paid before a certain date as time-barred under Section 11B of the CE Act. Since the payment during that period was not under protest, the Appellant could not benefit from the exception to the limitation period. Consequently, the orders of the CESTAT and Commissioner (Appeals) were upheld as legally sound, ruling in favor of the Department and against the Appellant (paragraphs 11-12).

In conclusion, the appeal was dismissed with no costs awarded, affirming the decision that the claim for refund of service tax was indeed time-barred under Section 11B of the Central Excise Act, 1944 (paragraph 13).