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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 ..... 06.2007 to 15.05.2008. M/s.Aban Offshore Ltd., have neither challenged the levy of service tax nor have filed any refund claim. The refund claim was filed by the respondents on 05.05.2009. The original authority has rejected the refund claim on various grounds including the ground of time bar (for an amount of Rs.10,42,56,631/ - relating to the period 05.09.2007 to 05.04.2008) and unjust enrichment etc. 3. The lower appellate authority has held that the activity of supply of 'floating rigs' by M/s.Aban Offshore Ltd., is covered under "Supply of Tangible Goods" service and the tax on the same is liable to paid only from 16.05.2008 under that Head. Hence, the lower appellate authority has set aside the original order and has directed the ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o) the provisions of Section 11B including the time-limit prescribed therein would be applicable. In this regard, the judgment of the apex court in the case of M/s.Mafatlal Industries Ltd. Vs Union of India - 1997 (89) E.L T.247 (S.C.) may be referred to (see Para 99) wherein it has been clearly laid down that "all claims for refund except where levy is held to be unconstitutional, to be preferred and adjudicated upon under Section 11 B of the Central Excise Act, 1944 or under Section 27 of the Customs Act, 1962 and subject to claimant establishing that burden of duty has not been passed on to third party - No civil suit for refund of duty is maintainable - Writ jurisdiction of High Court under Article 226 and of Supreme Court under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 be reopened on the basis of a decision on another person's case; this is the ratio of the opinion of Hon'ble Mr. Chief Justice Hidayatullah in Tilokchand Motichand and we respectfully agree with it". [ see Para 99 (ii)]. (5) In the present case, the respondent did not approach the High Court but has made a claim under Section 11 B of the Act before the excise authorities and, therefore, the provisions of Section 11 B of the Act (under which only the claim itself was filed) will be squarely applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have not. been challenged by the service provider who is the tax payer and, therefore, it cannot be said that the respondents have a prima facie case in their favour for grant of refund of the impugned amount. 7. Secondly, 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, prima facie, it appears that the order passed by the lower appellate authority disregarding the provisions relating to limitation and unjust enrich ..... X X X X Extracts X X X X X X X X Extracts X X X X
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