2018 (9) TMI 563 - AT - Central Excise

Restoration of appeal - appeal was dismissed for non-prosecution - whether the refund claim filed by the appellant on 24.06.2009 for the period 04.05.2006 and 19.07.2007 would be barred by limitation or not? - Held that - Admittedly, during the relevant period the appellant had discharged its tax liability on reverse charge basis in respect of services received from a foreign person. Neither any protest was alleged by the appellant nor the assessments were provisional. The refund claims stand filed on 24.06.2009 i.e., after the normal period of limitation under Section 11B. Admittedly, the refunds are required to be adjudicated in terms of the provisions of Section 11B of Central Excise Act inasmuch as there is no other provision in the Act to deal with the refunds. The limitation as provided under Section 11B is to be applied to each and every refund claim. The refunds in the present case having been admittedly filed beyond the period of limitation of one year are barred by limitation. Appeal dismissed - Restoration of appeal application disposed off.

Summary

Issues: Restoration of appeal dismissed for non-prosecution, Refund claim filed by appellant, Barred by limitation or not

Restoration of Appeal:
The appeal was dismissed for non-prosecution, and the appellant sought restoration citing personal difficulty in appearing on the scheduled date. The Registry did not receive the fax for adjournment. The tribunal recalled the final order, restored the appeal, and proceeded to decide the appeal due to the involvement of a short issue.

Refund Claim by Appellant:
The appellants, engaged in the manufacture and export of Leather Footwear, paid service tax on a reverse charge basis for services obtained from a foreign service provider before 18.04.2006. Following a decision by the Hon'ble Bombay High Court, the appellant filed refund claims amounting to ?83,142/- along with interest. The Adjudicating Authority initially rejected the claims on merits and limitation, but the Commissioner (Appeals) ruled in favor of the appellant on merits based on the Bombay High Court decision but rejected the claim on limitation grounds.

Limitation Issue:
The central issue in the appeal was whether the refund claim filed by the appellant on 24.06.2009 for the period 04.05.2006 and 19.07.2007 was barred by limitation. The appellant argued that the claim was within the limitation period as per the date of the Bombay High Court's decision. However, the tribunal found that the refunds were filed after the normal limitation period under Section 11B of the Central Excise Act. The tribunal emphasized that the relevant date for limitation calculations cannot be artificially introduced and must align with legal principles of interpretation.

Legal Precedents and Decision:
The tribunal rejected the appellant's argument that the collection of service tax was unauthorized, emphasizing that all refund claims must adhere to the provisions of Section 11B. Citing the Hon'ble Supreme Court decisions, the tribunal highlighted that refund claims before Revenue Authorities are governed by statutory time limits, and general law of limitation does not apply to Revenue Authorities. The tribunal concluded that the refunds filed beyond the one-year limitation period were barred by limitation, setting aside the impugned order and rejecting the appeal.

Conclusion:
The tribunal upheld the application of the limitation period under Section 11B to each refund claim, ultimately ruling that the refunds filed beyond the statutory time limit were not permissible. The appeal was rejected based on the limitation issue, as per the legal principles and precedents cited in the judgment.