9911796707
TMI Blog2017 (10) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... the intention of the legislature while enacting Section 103 of Finance Act,2016 was to provide the refund of Service Tax paid during the period 01.4.2015 to 29.02.2016 within a period of six months from the date of assent to the Finance Bill 2016 by the President of India. Therefore, the legislature must have taken into consideration the circumstances/eventualities in prescribing the period of limitation in filing the refund claim, without making any reference to possible delay in filing it and then authorizing the officers exercising jurisdiction, to condone the same on sufficient cause being shown. The question whether the time limit prescribed under the refund provisions in the context of refund claimed could be relaxed/ extended by the authorities, has been considered by the Hon’ble Supreme Court in the case of UOI Vs. Kirloskar Pneumatic Company [1996 (5) TMI 87 - SUPREME COURT OF INDIA], where it was held that The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction as there is no provision under Section 103 of Finance Act,2016 for condonation of delay, if any, beyond the period of six months prescribed thereunder in claiming the refund of Service Tax paid for the specified period from 01.04.2015 to 29.02.2016. It is his contention that the case law referred by the ld. Commissioner (Appeals) in the impugned order delivered in a different context and hence not relevant to the facts of the present case, in view of the clear wordings of Section 103 of Finance Act, 2016. Therefore, condoning the delay considering it as a procedural lapse and extending/relaxing the period of six months prescribed under Section 103 of Finance Act, 2016, is patently illegal, without jurisdiction, bad in law and should be set aside. Further, he has submitted that in absence of any specific provisions under Section 103 of Finance Act, 2016, for condonation of delay in filing the refund claim, neither the Commissioner (Appeals) nor this Tribunal has jurisdiction to extend the time limit prescribed thereunder. The refund of service tax for the period 01.4.2015 to 29.02.2016 ought to have been filed within six months from the date the Finance Bill receives the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.11.2016. It is his contention that in view of the provisions contained in Section 15 of Limitation Act, 1963, the period lost in collecting the relevant documents should not be considered in computing the period of six months prescribed under Section 103 of Finance Act, 2016. The learned Advocate submitted that since all the documents were not available with them, therefore, the refund could not be filed in time. He submits that for no fault of theirs, the refund claim cannot be held to be barred by limitation. In support of this fact, he has referred to the judgment of Hon'ble Gujarat High Court in the case of Cosmonaut Chemicals Vs UOI - 2009 (233) ELT 46 (Guj). 6. Further, drawing the attention of the Bench to the decision of Hon'ble Supreme Court in the case of M.P. Steel Corporation Vs CCE - 2015 (319) ELT 373 (SC), the learned Advocate submitted that taking note of the circumstances of the case, their Lordships in that case observed that spirit of the provisions of Limitation Act is applicable in waiving the period of limitation prescribed under Section 128 of Customs Act, 1962 in filing the appeal before Commissioner (Appeals). Applying the said principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or collected during the period commencing from the 1 st day of April, 2015 and ending with the 29 th day of February, 2016 (both days inclusive), in respect of services provided by way of construction, erection, commissioning or installation of original works pertaining to an airport or port, under a contract which had been entered into before the 1 st day of March, 2015 and on which appropriate stamp duty, where applicable, had been paid before that date, subject to the condition that Ministry of Civil Aviation or, as the case may be, the Ministry of Shipping in the Government of India certifies that the contract had been entered into before the 1 st day of March, 2015. (2) Refund shall be made of all such service tax which has been collected but which would not have been so collected had sub-section (1) been in force at all material times. (3) Notwithstanding anything contained in this Chapter, an application for the claim of refund of service tax shall be made within a period of six months from the date on which the Finance Bill, 2016 receives the assent of the President. 9. The limited issue for consideration in the present case is: whether the refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssues arising under Central Excise Act or the Finance Act,1994 in view of the principle of law laid down by three Members Bench of the Hon'ble Supreme Court in the case of Hongo India (P) Ltd (supra). 14. We find merit in the contention of the learned Authorized Representative for the Revenue, in view of the observation of Hon'ble Supreme Court in the case of Hongo India (P) Ltd which reads as under:- 20. Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to High Court. It was contended before us that the words expressly excluded would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner(Appeals) has jurisdiction and he has rightly condoned the delay. In support, he has referred to the decision of Hon'ble Allahabad High Court in the case of Barco Electronics Systems Ltd (supra). 17. We do not find force in the said argument of the Ld. Advocate for the Appellant. The application/interpretation of time limits prescribed in exercising a particular right vested under different provision of an Act or Rules cannot be uniformly applied to all circumstances under the said Act or Rules. For example, the time limit prescribed for filing an Appeal could be interpreted as a procedural one in the context of Appellate procedure, but same interpretation cannot be applied for the time limits prescribed for recovery or refund of the duty. It is settled principle of law that even if duty or tax is due to the Revenue, it cannot be recovered from an assessee by issuing demand notice beyond the period from the relevant date as mentioned in the recovery provision of the particular Act. The service tax refund under the Finance Act, 1994 is administered by referring to Sec.11B of CEA, 1944. Therefore it is relevant to apply the principle of law laid down in the contex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27 which inter alia includes the period of limitation mentioned therein. Mr. Hidayatullah submitted that the period of limitation prescribed by Section 27 does not apply either to a suit filed by the importer or to a writ petition filed by him and that in such cases the period of limitation would be three years. Learned counsel refers to certain decisions of this Court to that effect. We shall assume for the purposes of this appeal that it is so, notwithstanding the fact that the said question is now pending before a larger Constitution Bench of nine Judges along with the issue relating to unjust enrichment. Yet the question is whether items permissible for the High Court to direct the authorities under the Act to act contrary to the aforesaid statutory provision. We do not think it is, even while acting under Article 226 of the Constitution. The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who are the creatures of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between April, 2005 and October, 2005. Thus the refund claim which was filed on 22 nd March, 2007 was clearly beyond the period of one year. It thus clearly emerges that refund claim was made beyond the period of limitation prescribed under Section 11B of the Act. 13. We are unable to uphold the contention that such period of limitation was only procedural requirement and therefore could be extended upon showing sufficient cause for not filing the claim earlier. To begin with, the provisions of Section 11B itself are sufficiently clear. Sub-section (1) of Section 11B, as already noted, provides that any person claiming refund of any duty of excise may make an application for refund of such duty before the expiry of one year from the relevant date. Remedy to claim refund of duty which is otherwise in law refundable therefore, comes with a period of limitation of one year. There is no indication in the said provision that such period could be extended by the competent authority on sufficient cause being shown. 21. Needless to emphasize, applying the above ratios to the facts of the present case, it can safely be inferred that the period of six months prescribed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above. It is only a court of plenary jurisdiction, which the Tribunal is not, which has inherent powers. Reference in this connection may be made with profit to Section 482, Cr. P.C, which speaks about the inherent powers of the High Court. It is well settled that what the High Court can do under Section 482, Cr. P.C. cannot be done even by a court of session, to bring home which it is enough to state that though the High Court can quash a criminal proceeding in exercise of powers under Section 482, Cr. P.C. a Sessions Judge cannot. As to the award of the amount in question to do complete justice, it may be stated that the power to pass appropriate order to do complete justice inheres in the apex court of the country only, of which mention has been made in Article 142 of the Constitution. This power is not available even to High Courts, as pointed out recently by a Full Bench of this Court in Krishna Chandra v. Union of India, AIR 1992 Orissa 261 (See paragraphs 20 and 21). Because of these, we would state that the Tribunal could not have awarded the sum in question - in original or revised - either in exercise of its inherent power or with a view to do complete justice between ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
