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TMI Blog2016 (5) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... have filed refund claim of Rs. 3,62,149/- on 23.4.2010 in respect of service tax paid on the output service on the ground that they have provided Business Auxiliary Services (Visa Services) which is out of scope of service tax applicability. Since the service tax was paid during the period April 2009 to September 2009 and refund claim was filed on 23.4.2010 show cause notice was issued proposing rejection of refund claim on the ground of time bar as per Section 11B of the Central Excise Act ,1944 as the refund claim was filed after one year from the relevant date. The adjudicating authority vide Order-in-Original rejected the refund claim being time bar under the provisions of Section 11B of Central Excise Act. Aggrieved by the adjudicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad-2016-TIOL-47-CESTAT-AHM (ix) Jubiliant Enterprises P. Ltd. Vs. Commissioner of C. Ex. Mumbai -2014 (35) S.T.R. 430 (Tri.-Mumbai) (x) C.C.E & S.T. Bhavnagar Vs. Madhvi Procon Pvt. Limited-2015 (38) S.T.R. 74 (Tri.-Ahmd.) 4. On the other hand, Ms. P. Vinitha Sekhar, Ld. Deputy Commissioner (A.R.) appearing on behalf of the Revenue reiterates the finding of the impugned order. She submits that though the Ld. Counsel has relied upon certain judgments, the Hon'ble Supreme Court in various judgments categorically held that in case of refund of any amount it is governed by Section 11B of the Central Excise Act only and the statutory time limit provided under Section 11B shall be applicable for refund of any amount. She submits that there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly considered the submissions made by both the sides. I find that the appellant have admittedly paid the service tax on Business Auxiliary Service even though such service was not leviable to service tax. However for the purpose of claiming refund of such amount of service tax, which was paid by the appellant, in the Central Excise Act Section 11B is only provision which deals with refund of any amount refundable to any person. Section 11B is applicable in the case of service tax matter by virtue of Section 83 of the Finance Act 1994. In my view, since the amount claiming refund by the appellant can be refunded only under Section 11B, the limitation provided in the said Section shall also apply for sanction of refund. There is no other prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments relied upon by the Ld. A.R. which includes the various Supreme Court judgments wherein the Hon'ble Supreme Court has categorically held that for refund of any amount under Section 11B stipulates the time limitation which has to be followed mandatorily. I, therefore of the view that this issue has been clearly settled by the Hon'ble Supreme Court that even though the refund of duty recovered without authority of law but for the refund claims made before the departmental authorities, limitation provided under the Customs Act/Central Excise Act or the Rules made thereunder is applicable. The authorities functioning under the Act bound by its provision in the case of Doaba Co-operative Sugar Mills (supra) which was held that- "6. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962. If really the payment of the duty was under a mistake of law, the party might seek recourse to such alternative remedy as it might be advised. See the observations of this Court in Miles India Ltd. v. The Assistant Collector of Customs [1987(30) E.L.T.641 (S.C.) = 1985 E.C.R. 289]." In the case of Miles India Ltd. (supra) held that- "After the matter was heard for some time and it was indicated that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefore under Section 27(1) of the Customs Act, 1962, learned counsel for the Appellant sought leave to withdraw the appeal. We accord their leave to withdraw the appeal but make it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise Act 1944, as applicable to service tax vide Section 83 of the Finance Act, 1994, refund claim is not sustainable as it was filed beyond 1 year from the date of payment of service tax. In view of the above, Hon'ble Supreme Court judgment and the jurisdictional Bombay High Court judgment, all the judgments relied upon by the Ld. Chartered Accountant stands distinguished. I am of the view that since refund of any amount is covered by Section 11B and there no other provision, this Tribunal being a creature under the Central Excise/Customs Act cannot go beyond the statute and therefore cannot relax the time limitation provided under the statute. As per my above discussion and settled legal position, I am of the considered view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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