2019 (6) TMI 1320 - AT - Service Tax

Refund of service tax paid which the appellant is not liable to pay - rejection on the ground of time limitation - period April 2006 to February 2008 - SCN issued on 12.01.2010 - whether the time limit prescribed under Section 11B of the Central Excise Act, 1944 is applicable in a case where tax is not payable by the appellant or not? - HELD THAT - The said issue has been examined by the Hon ble High Court of Delhi in the case of NATIONAL INSTITUTE OF PUBLIC FINANCE AND POLICY VERSUS COMMISSIONER OF SERVICE TAX 2018 (8) TMI 1524 - DELHI HIGH COURT - the appellant were not liable to pay service tax, therefore, the time limit prescribed under Section 11B of the Central Excise Act, 1944 for filing the refund claim is not applicable to the facts of this case. Refund allowed - appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claim rejection as time-barred under Section 11B of the Central Excise Act, 1944.

Analysis:
The appellant filed a refund claim for the period April 2006 to February 2008 on 12.01.2010, which was rejected as time-barred. The appellant had paid service tax during this period for services provided to foreign-based service recipients. The appellant contended that services provided were treated as export as per CBEC Circular No. 111/05/2009-ST, and thus, no service tax was payable. The appellant relied on a Delhi High Court decision to support this argument.

The respondent argued that the refund claim was governed by the time limit under Section 11B of the Act, requiring claims to be filed within one year from the date of payment. Since the appellant filed the claim beyond this time limit, it was rightly rejected.

The Tribunal considered whether the time limit under Section 11B of the Central Excise Act, 1944 applied when tax was not payable by the appellant. Referring to a Delhi High Court decision in a similar case, the Tribunal held that since the appellant was not liable to pay service tax, the time limit under Section 11B did not apply. Therefore, the Tribunal set aside the impugned order, allowing the appeal with consequential relief.

In conclusion, the Tribunal found that the appellant, not being liable to pay service tax, was not bound by the time limit prescribed under Section 11B of the Central Excise Act, 1944. The Tribunal relied on a Delhi High Court decision to support this finding and set aside the rejection of the refund claim as time-barred.