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TMI Blog2012 (12) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - ST/253/2012 and Cross Objection No. ST/CO/30/2012 - Final Order Nos. A/1574-1575/2012-WZB/AHD - Dated:- 29-10-2012 - MR.M.V. RAVINDRAN, AND MR. B.S.V. MURTHY, JJ. Represented by: For Appellant : Mr. M. Kutty (AR) For Respondent : Mr.Rohan Thakkar (Adv.) Per: M.V. Ravindran: This stay petition and appeal are filed by the Revenue against the Order in Appeal No. No.63/2012(STC)/K.A.ANPAZHAKAN/COMMR(A)/ AHD DATED 21/02/2012. 2. After considering the submissions made by the on stay petition, we find that the Appeal itself would be disposed of at this juncture, hence we take for disposal after disposing the stay petition. 3. The relevant facts that arises for consideration are that the Respondent herein had filed a refund claim of ₹ 24,21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice provider was eligible for refund of ₹ 24,21,125/- in respect of Service paid under the category of Courier Agency Service. (3) The Commissioner (A) has failed to appreciate that refund claim has been filed beyond a period of one year prescribed under Section 11B of the Central Excise Act, 1994 read with Section 83 of the Finance Act, 1994. (4) The clarification by the CBEC vide a letter bearing F.No./137/123/2010-CX-4 dated 09/05/2011 on which he said service provider has mainly relied upon, does not cover any conditions of Section 11B of the Central Excise Act, 1944 for relevant date. (5) The said service provider has to file refund claim within one year from the date of payment of service tax. In the instant case, the assessee has filed refund claim for the payment of service tax for the period from 16/11/2007 to 07/06/2008. The assessee has filed the refund claim on 01/07/2011 i.e. 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. (6) In view of the grounds mentioned in the foregoing paras, the adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Applicant, the Applicant was under the belief that the amount is taxable, hence, the amount was paid by the Applicant though the applicant was not paid by Shri Sai Marketing Trading company. Shri Sai Marketing Trading company were of the belief that they are not liable to pay service tax on the amount paid by them to M/s.GSRTC. As a result, Shri Sai Marketing Trading company approached Authority for Advance Ruling, Custom and Central Excise, Ministry of Finance, Government of India under Right to Information Act for seeking the clarification as to whether service tax is required to be paid by them for the amount paid by them as a licence fee to M/s. GSRTC and in response, they were advised to approach jurisdictional Commissioner for seeking clarification. The Assistant Commissioner, Jalgaon, being the Jurisdictional Assistant Commissioner, Jalgaon vide his letter F. No.DD/ST/Misc/08 dated 09/07/2008 confirmed that GSRTC has no ground for collecting service tax in the category of Courier Service. 5.6. Similar opinion was given by the Superintendent, Service Tax, Range-II, Division-I, Ahmedabad that M/s. GSRTC is not required to collect service tax from Shri Sai Marketing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eting Trading company, Jalgaon for transport of goods. Prior to the decision of the Board, the matter was under litigation. 5.12. Thus, pursuant to the clarification of the Board, the Applicants had filed a refund claim of ₹ 24,21,125/- on 01/07/2011 stating the non-applicability of service tax on space provided by the Applicant (M/s.GSRTC) to M/s. Shri Sai Marketing Trading company, Jalgaon. Along with the said claim, the Applicants have also submitted the certificate from the Chartered Accountant which certifies that M/s.GSRTC has paid service tax of ₹ 24,21,125/- for the period from 01/09/2007 till 31/05/2008 and the said certificate also certifies that the amount of ₹ 24,21,125/- paid as service tax is standing in the books of M/s.GSRTC as an SERVICE TAX REFUND RECEIVABLE . 6. In rejoinder to the submissions made by the learned Advocate, the departmental representative would submit that the Constitutional Bench of the Hon ble Supreme Court in the case of Mafatlal Industry has specifically held that when the refund is claimed of an amount which is unconstitutional, the remedy available to any person is by way of a statute or by way of a writ petition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of excise and interest, if any, paid on such duty duty and interest, if any, paid on such duty has been substituted vide Finance Bill 2008) (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty [OLD- duty of excise ] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise and interest, if any, paid on such duty [OLD- duty of excise ] as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant s account current maintained with the Commissioner of Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette. Explanation . - For the purposes of this section, - (A) refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) relevant date means,- (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of dispatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount was considered by the respondent as not taxable. 14. We find strong force in the contentions raised by the Learned Departmental authorities that even we consider the said amount paid by the respondent as unconstitutional or non-leviable, the records are available to the respondent to file a suit as has been held by the Constitutional Bench of the Apex Court in the case of Mafatlal Industries, 1997(89)ELT, 247. 15. We find that in paragraph 99(ii) of the said judgment, the Apex Court has held as under: (ii) Where, however, a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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