9911796707
TMI Blog2016 (6) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Act or the Rules made thereunder is applicable. The authorities functioning under the Act bound by its provision. Since the refund of any amount is governed by Section 11B and there being 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. Therefore, the refund claims being filed after one year is hit by limitation and therefore correctly rejected by the lower authority. The impugned orders are upheld. - Decided against the appellant - Appeal No. ST/77, 78/10 - A/87760-87761/16/STB - Dated:- 5-5-2016 - Mr Ramesh Nair, Member(Judicial) And Mr. C.J. Mathew, Member (Technical) Shri. Bharat Raichandani, Advocate for the Appellants Shri. S.R. Nair, Examiner(A.R.) for the Respondent ORDER Per : Ramesh Nair This appeal is directed against Order-in- Appeal No. AKP/104/NSK/2009 and No. AKP/102/NSK/2009 both dated 18/11/2009 passed by the Commissioner(Appeals) of Central Excise Customs, Nasik, whereby Ld. Commissioner(Appeals) partly allowed the appeals of the appellants to the extent of ₹ 81,567/ and ₹ 73, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing judgments: (a) Geojit BNP Paribas Financial Services Ltd Vs. CCE., Cus S.T. Kochi[2015(39) S.T.R. 706(Ker.)] (b) Commr. of C. Ex. (Appeals), Bangalore Vs KVR Construction[2012(26) S.T.R. 195(Kar.)] (c) C.K.P. Mandal Vs. Commissioner of Service Tax, Mumbai-II[2015(38) S.T.R. 73(Tri. Mum)] (d) Natraj and Venkat Associates Vs. Asstt. Commr. of S.T. Chennai-II[2010(17) S.T.R. 3(Mad.)] (e) Commr. of C. Ex. Pune-III Vs. Shankar Ramchandra Auctioneers [2010(19) S.T.R. 222(Tri. Mum)] (f) Jubilant Enterprises P. Ltd Vs. Commissioner of C. Ex. Mumbai-I[2014(35) S.T.R. 430(Tri. Mumbai)] (g) Shree Baidyanath Ayurved Bhawan (Pvt) Ltd Vs. Union of India [1999(106) ELT 293(Pat.)] (i) Hindustan Cocoa Products Vs. Union of India[1994(74) ELT 525(Bom)] (j) Orissa State Electricity Board Vs. Collector of Customs(Appeals)[1992(60) ELT 209] 4. Shri. S.R. Nair, Ld. Examiner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He 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 gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of refund the amount became refundable only where it is not payable as per law and accordingly every such amount shall be treated as payment without authority of law. If this view is accepted then Section 11B will stand redundant, as in every refund matter Section 11B shall not apply for the reason that any amount which is refundable is neither the service tax nor excise duty and all such amount shall be deemed to be paid without authority of law. Therefore in my considered view, at the time of payment the assessee pays the amount under a particular head such as service tax, excise duty etc. and when subsequently it is found that this amount is not payable, the same amount stand refundable to the assessee and such refund is treated as refund of service tax/duty only. Therefore, the provision if any applies for refund of such duty is only provided under Section 11B and there is no any other provision. Therefore in our view, any amount which is to be refunded shall be refunded in accordance with Section 11B which include the condition of time limitation. As regard judgments cited by the Ld. A.R. on going through those judgments, we find that the judgments which includes the vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 clear that the order of the Customs, Excise Gold (Control) Appellate Tribunal suffers from no infirmity. If really the payment of the duty was under a mistake of law, the appellant may seek recourse to such alternative remedy as it may be advised. The appeal is accordingly dismissed as withdrawn . In the case of Anam Electrical Manufacturing Co. (supra) the Hon ble Supreme Court with regard to limitation under Section 11B lays down the following guidelines : Where refund application was filed by?(1) manufacturer/purchaser beyond the statutory time limit of Section 11B/27 ibid. In the case of Bajaj Foods Ltd. (supra) the Hon ble Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
