9911796707
TMI Blog2017 (6) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... f Law for consideration: "(i) Whether the Tribunal was correct in allowing the appeal of the revenue after holding that the amount of refund claimed by the appellant herein was collected without the authority of law but such collection was not unconstitutional by an improper consideration and reliance upon the judgment of the Hon'ble Apex Court in the Mafatlal case reported in 1997 (89) ELT 247 (SC)? (ii) Whether the Tribunal was correct in traversing beyond the scope of appeal filed by the revenue, which only contested the application of the period of limitation under the Limitation Act as against the one provided under Section 11B of the Central Excise Act made applicable to the provisions of the Finance Act, 1994? and (iii) Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax refund claims by virtue of the provisions of Section 83 of the Finance Act, 1994. 4.2. The Adjudicating Authority, vide order dated 13.07.2010, dismissed the refund claim, preferred by the appellant/ Assessee, as it was beyond limitation. 5.The appellant being aggrieved, preferred an appeal with the Commissioner of Central Excise (Appeals) [in short, Commissioner (Appeals)]. 5.1.The Commissioner (Appeals), however, ruled in favour of the Appellant/ Assessee. The Commissioner (Appeals) vide order dated 12.02.2013, held that since service tax had been inadvertently remitted, it was not in effect, tax under the Statute, and therefore, the provisions of Section 11B of the Central Excise Act, 1944, were not applicable in the instant case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers under Finance Act, 1994 and Central Excise Act 1944. Such authorities have no powers to grant such refund except in accordance with provisions of section 11B." 6. In sum, based on the aforesaid observations, the Tribunal, as indicated above, allowed the appeal and set aside the order of the Commissioner (Appeals). 7.The Appellant/ Assessee has preferred the instant statutory appeal, in the background of the aforesaid facts and circumstances. 8.Mr.N.Viswanathan, who appears on behalf of the Appellant/ Assessee says the order of the Tribunal is erroneous, in as much as, it is observed in the impugned judgment, that the levy though "without the authority of law" was not unconstitutional. 8.1.Learned counsel says that since the tax w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rference, is called for. 13.In view of our discussion above, Question No.(i) is answered in favour of the Revenue, for its conclusion, subject to caveat set forth above with regard to its observation that the levy could be construed without authority of law but not unconstitutional. 13.1.In so far as, Question No.(ii) is concerned, it is answered against the Assessee and in favour of the Revenue. 13.2.As regards, Question No.(iii), in which, there is a reference to the judgment of the Gujarat High Court in the matter of : Binani Cement Vs. Union of India reported in 2013 (288) ELT 193 (Guj.) - that judgment, in our opinion, would have no application to the instant case, as in that matter, the Gujarat High Court was dealing with a writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
