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TMI Blog2013 (4) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... that the respondents have a prima facie case in their favour for grant of refund of the impugned amount. Also the respondents have filed the refund claim under Section 11 B of the Central Excise Act as made applicable in respect of service tax. The original authority and the lower appellate authority being creatures of the statute, prima facie are required to follow the statutory provisions while dealing with a refund claim filed under the same statute under Section 11B. Therefore it appears that the order passed by the lower appellate authority disregarding the provisions relating to limitation and unjust enrichment etc. provided under the said Section 11 B may not be legal and proper and beyond his jurisdiction. The balance of conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d has directed the original authority to sanction the refund, leading to this appeal by the department. The department has also filed a stay petition along with the appeal in respect of which arguments have been heard from both sides. 4. Learned JCDR, Shri V.V. Hariharan arguing for the department makes the following submissions for grant of stay of operation of the impugned order of the lower appellate authority:- (1) In this case, the service tax refund has been claimed by the recipient of the service and not the provider of the service. The provider of the service namely, M/s.Aban Offshore Ltd., has paid the tax under the category of Mining Service and they have not disputed the liability to tax. Therefore, as a recipient of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise and Customs Act and to refuse grant of relief where burden of duty passed on to third party - Favourable order not to result in automatic refund and claimant to prove burden of duty not passed on to third party. (3) Regarding limitation, the formal order of the Supreme Court in Assistant Collector of Customs Vs M/s.Anam Electrical manufacturing Co. - 1957 (90) E.L.T.260 (S.C.) was also referred to. (4) The case law cited by the Commissioner (Appeals) namely, M/s. Natraj and Venkat Associates Vs Assistant Commissioner of Service Tax Chennai-II - 2010 (249) E.L.T. 337 (Mad.) also does not help the respondents as in that case it was the service provider who approached the court when the refund claim was made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Rs.3.46 crores) the respondents have no locus standi to claim the refund from the tax authorities since the service provider has not contested the payment made by him. 5. Shri Gajendra, learned advocate appearing for the respondents vehemently opposes the stay petition and states that the operation of the impugned order passed by the lower appellate authority should not be stayed and the respondents should be allowed to take refund of the impugned amount. He supports the impugned order of the lower appellate authority who has relied on the decision of the Hon'ble Madras High Court in the case of M/s.Natraj and Venkat Associates (supra). He also places reliance on the decision of the Hon'ble Delhi High Court in the case of M/s.Hind Agro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the judgement of the Supreme Court in the case of M/s. Mafatlal Industries (supra) that all claims of refund except where the levy is held to be unconstitutional have to be adjudicated as per Section 11 B of the Central Excise Act, 1944 (or under Section 27 of the Customs Act, 1962 in respect of Customs cases) cannot also be ignored. Prima facie, the departmental authorities have to function within the ambit of the statute which has created these authorities and they cannot assume powers and jurisdictions of constitutional courts such as the Hon'ble High Court. Hence, prima facie, it seems that the lower appellate authority had no jurisdiction to grant the kind of relief which the Hon'ble Madras High Court has granted in the case of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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