2012 (12) TMI 673 - AT - Service Tax

Claim for Refund - Whether the Service Provider for providing space in their buses was eligible for refund in respect of Service paid under the category of Courier Agency Service Held that - As decided in Mafatlal Industries 1996 (12) TMI 50 - SUPREME COURT OF INDIA refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. This principle is, however, subject to an exception where a person approaches the High Court or Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be re-opened on the basis of a decision on another person s case opined in Tilokchand Motichand case 1968 (11) TMI 86 - SUPREME COURT OF INDIA . As assessee has filed the refund claim after three years from the date of payment. Therefore the refund claim filed by the assessee hit by time limit and not filed within time limit of one year as per section 11B of Central Excise Act, 1944, thus correctly rejected by the Adjudicating Authority - appeal filed by revenue is allowed.

Summary

Issues Involved:
1. Eligibility for refund under Section 11B of the Central Excise Act, 1944.
2. Timeliness of the refund claim.
3. Applicability of CBEC clarification.
4. Legal recourse for refund of unconstitutional levies.

Issue-wise Detailed Analysis:

1. Eligibility for Refund under Section 11B of the Central Excise Act, 1944:
The core issue was whether the respondent was eligible for a refund of Rs. 24,21,125/- paid as Service Tax under the category of Courier Agency Services. The respondent based their claim on a CBEC clarification stating that the service provided (space in buses for parcels) did not fall under Courier Agency Services. However, the Adjudicating Authority rejected the refund, and this decision was initially overturned by the First Appellate Authority. The Tribunal emphasized that any refund claim must comply with Section 11B, which mandates the filing of a claim within one year from the relevant date.

2. Timeliness of the Refund Claim:
The refund claim was filed on 01/07/2011, for the period from 01/09/2007 to 31/05/2008, which was beyond the one-year limitation period prescribed under Section 11B. The Tribunal noted that the respondent's payment of Service Tax was self-assessed and finalized, and any refund claim should have been made within the statutory period unless the assessment itself was challenged. The Tribunal found that the claim was time-barred and thus not maintainable.

3. Applicability of CBEC Clarification:
The respondent relied on a CBEC clarification dated 09/05/2011, which stated that their service did not fall under Courier Agency Services. However, the Tribunal pointed out that this clarification did not alter the statutory requirements of Section 11B. The Tribunal held that even if the service was later clarified as non-taxable, the refund claim still needed to comply with the statutory time limits and procedural requirements.

4. Legal Recourse for Refund of Unconstitutional Levies:
The Tribunal referred to the Supreme Court's decision in Mafatlal Industries, which held that claims for refunds of unconstitutional levies must be pursued either through statutory provisions or by filing a writ petition. The Tribunal noted that the respondent did not pursue these avenues and instead filed a belated refund claim. The Tribunal emphasized that the law governing refunds is clear and must be strictly followed.

Conclusion:
The Tribunal concluded that the refund claim was correctly rejected by the Adjudicating Authority due to non-compliance with the statutory time limits under Section 11B of the Central Excise Act, 1944. The appeal filed by the Revenue was allowed, and the order of the First Appellate Authority was set aside. The Tribunal reiterated the importance of adhering to statutory provisions and the appropriate legal recourse for claims of unconstitutional levies. The operative portion of the order was pronounced in Court.