Applicability of Limitation Period for Refund

[Sucheta Agrawal]

Section 11B. Claim for refund of duty.-

(1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person:

Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act;

Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest.

Limitation Period:-

The application should be made within one year from the relevant date as prescribed in section 11B of the Central Excise Act 1944 which has been applicable service tax refund matter also.

The Applicability of the period of one year is not applicable if refund claim is made other than for duty of excise and interest. It means if any duty or tax is not applicable on any product or services then the period of limitation is not applicable.

For Example-

 If Mr. A by mistake has paid the service tax on the services which are not fall in the category of services then for claiming the refund the period of limitation is not applicable.

Judiciary decision-

In the case of Natraj and Venkat Associates v Assistant Commissioner of Service Tax, Chennai-II 2009 -TMI - 34805 - MADRAS HIGH COURT, an architect service was provided to a client in Sri Lanka and service tax was paid but later on it was realised that the service rendered for the construction of a building in Sri Lanka would not attract service tax. Hence the refund claim was filed. It was rejected by the Department on the ground of time-bar. The High Court in this case held that section 11B deals only with the claim for refund of 'any duty of excise' and what was paid in the present case cannot be taken to be a duty of excise, as duty of excise is the duty which is levied in accordance with law. Therefore, the bar of limitation under section 11B(1) cannot be applied in the present case as such limitation applies only to a person claiming refund of any duty of excise and interest. In the present case limitation will not apply, as there was no dispute about the fact that no service tax was payable by the Petitioner and as a corollary, what was paid by them was not service tax. As in the present case, there was evidence on record to show that there was no unjust enrichment, the Government was directed to make a refund of the amount payable to the Petitioner.

Relevant date-

The relevant date for the purpose of limitation period for the refund claim is explained in section 11B of the Central Excise Act 1944 which is applicable for service tax.

Generally	Date of payment
Provisional Assessment	Date of Final Assessment
For recipient of service	Date of purchase of service
Rectification of mistake	Date of which rectification order is passed
Exemption Notification	Date of publication in official gazette

 

Discussions to this article

[gurumurthy k]

good article

[gurumurthy k]

good article