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2016 (12) TMI 1531 - AT - Service TaxRejection of refund claim - service tax paid to M/s Aditi Computers who were engaged by the appellant for carrying out activities such as billing etc of the electricity distributed by the appellant to consumers - time bar - the service tax stands paid during the period August 2004 to April 2006 and the refund has been filed on 22.11.2007. The argument raised by the appellant is that the one year time limit will not be applicable to the present refund claim since the service tax has been paid on a service which is not taxable. Held that - Refund of any amount paid as tax is necessarily to be governed by Section 11B of the Central Excise Act 1944 which has been made applicable for purposes of refund of service tax by Section 83 of the Finance Act 1994. Consequently refund of any amount of service tax has to satisfy the provisions of Section 11B of the Act. This section requires refund claim to be filed within a period of one year from the relevant date which in this case is the date of payment of service tax - Since the refund claim has not been filed within the time limit prescribed under Section 11B the claim has been rightly rejected. Appeal rejected - decided against appellant.
Issues:
Refund claim of service tax paid to a service provider for billing activities under Business Auxiliary Service (BAS) rejected on grounds of time bar and merits. Analysis: The appellant filed an appeal against the Order-In-Appeal dated 31.3.2010 by the Commissioner (Appeals), Jaipur, regarding a refund claim of service tax paid to M/s Aditi Computers for billing activities related to electricity distribution. The appellant argued that the billing activities should be considered as "Information Technology Services" (ITS) and not liable for service tax under BAS. The refund claim was rejected by the original authority on both merit and time bar grounds on 6.8.2009. The Commissioner (Appeals) upheld the rejection, leading to the current appeal. The appellant contended that no service tax was payable on the billing activities by M/s Aditi Computers as they fell under ITS, which was excluded from BAS until 01.05.2006. The appellant, who reimbursed the service tax to M/s Aditi Computers, claimed a refund on merits. Additionally, they argued that the refund should not be subject to the time limits specified under Section 11B of the Act as the tax was paid by mistake. The Departmental Representative supported the original adjudicating authority's decision, emphasizing that any refund is subject to Section 11B, requiring claims to be filed within one year from the relevant date of payment. As the claim was filed on 22.11.2007, beyond the one-year limit from M/s Aditi Computers' payment date, it was rejected as time-barred. The Tribunal focused on the time bar issue, stating that the service tax was paid from August 2004 to April 2006, with the refund claim filed on 22.11.2007. The appellant argued that the one-year limit should not apply since the service was not taxable. They cited case laws supporting this argument. However, the Tribunal held that the refund must adhere to Section 11B, requiring claims within one year from the payment date. The Tribunal rejected the appellant's argument that the time limit did not apply, citing case laws like Geojit BNP Paribas Financial Services Ltd. Vs. CST, Kochi, stating that such decisions do not apply to the Tribunal as it cannot go beyond statutory provisions. Consequently, the Tribunal upheld the impugned order, rejecting the appeal based on the time bar issue.
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