2021 (10) TMI 589 - AT - Service Tax

Refund of service tax paid as pre-deposit - duty paid under protest - applicability of time limitation - HELD THAT - Hon ble High Court of judicature at Madras in one of its decisions in the case of M/S. 3E INFOTECH VERSUS CUSTOMS, EXCISE SERVICE TAX APPELLATE TRIBUNAL, COMMISSIONER OF CENTRAL EXCISE (APPEALS-I) 2018 (7) TMI 276 - MADRAS HIGH COURT has considered an almost identical issue and, has, after considering decisions of the Hon ble Apex Court as well as other High Courts, held that application under Section 11B for refund cannot be rejected on the ground that it is barred by limitation. On merits, the adjudicating authority has observed that the appellant s claim was not supported by any documentary evidences. Further, also the Chartered Accountant certificate furnished by the appellant is given in 2019 while the payments were made in the year 2008. The Chartered Accountant has specified that the said certificate was issued at the request of the appellant . Hence the certificate is only a self serving document which cannot be considered as a conclusive proof to decide the issue. Law provides permissible documentary evidences that are accepted by the sanctioning authority and apparently, no effort seems to have been made by the appellant in this regard. But considering the fact that the refund is subject to Section 11B wherein the authority has to credit the amount claimed to the welfare fund if the claimant is not entitled for the same, which having not been done, I am of the view that the appellant deserves a second chance. Case remanded back to the file of adjudicating authority before whom the appellant shall furnish necessary documentary evidences in support of its claim and the adjudicating authority shall thereafter pass a speaking order after considering all such evidences that may be furnished by the appellant in this regard - appeal allowed by way of remand.

Summary

Issues:
Refund entitlement under Section 13B of the Central Excise Act, 1944.

Analysis:
The case revolved around the appellant's claim for a refund of excess payment of taxes amounting to ?13,28,220 under Section 13B of the Central Excise Act, 1944. The appellant had pre-deposited a sum during the investigation, which was later found to be in excess of the actual liability. The lower authorities rejected the refund claim citing the time-limit under Section 11B as time-barred. However, a precedent from the Hon'ble High Court of judicature at Madras highlighted that a refund claim cannot be rejected solely on the ground of being time-barred. The judgment emphasized the constitutional mandate that no tax shall be collected except by authority of law, supporting the appellant's claim for refund despite the expiration of the limitation period.

On the issue of documentary evidence, the adjudicating authority noted the lack of supporting documents for the refund claim. The Chartered Accountant certificate provided by the appellant in 2019 was considered self-serving and inconclusive due to being issued long after the payments were made in 2008. While the certificate was at the appellant's request, it did not serve as definitive proof. The absence of permissible documentary evidence accepted by the sanctioning authority raised concerns, but the judgment acknowledged the appellant's right to a fair chance. The case was remanded back to the adjudicating authority for the appellant to furnish necessary documentary evidence to substantiate the refund claim adequately.

In conclusion, the appellate tribunal set aside the lower authorities' decision and remanded the case for further review. The appellant was directed to provide essential documentary evidence to support the refund claim, and the adjudicating authority was instructed to issue a comprehensive order after considering all furnished evidence. The appeal was allowed by way of remand, granting the appellant an opportunity to substantiate their refund claim effectively.