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TMI Blog2018 (1) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... is court held as under:- "1. This appeal is preferred against the order of Tribunal whereby Tribunal has decided two appeals together wherein appeal No. E/2549/2009-Ex (SM), [Arising out of order in appeal No. 10/2009 (ST) dated 03.06.2009 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Jaipur-I] and Appeal No.ST/214/2009-EX(SM) [Arising out of Order-In-Appeal No.206 (DK)ST/JPR-I/2008 dated 16.10.2008 by the Commissioner of Customs, Central Excise and Service Tax (Appeals), Jaipur-I] 1.1 This Court while admitting the appeal on 31.05.2017 framed following substantial questions of law:- "(i) Whether the ld. Tribunal was justified in holding that the assessee was entitled for refund of Rs. 8,26,637/- on the ground that the bar of limitation as provided under Section 11B of the Act will not apply.? (ii) Whether the ld. Tribunal was justified in holding that the assessee was entitled for refund of Rs. 7,94,490/- on the ground that once an order has already been passed by the ld. Commissioner (Appeals) thereafter the order passed by the ld. Commissioner in Review is not sustainable and that the assessee has satisfactorily provided the necessary evidences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Commissioner is not sustainable on the merits as the adjudicating authority had considered the facts that amount of Service Tax paid by the Appellant shown receivable from the Excise Department if the same would have been considered there was no question reviewing by the Commissioner. 3. Counsel for appellant relied upon the decision in Shravan Banarasilal Jejani vs. Commissioner of C. Ex. Nagpur, 2014 (35) STR 587 (Tri.-Mumbai), wherein it has been observed as under: " The appellants are in appeals against the impugned orders wherein their refund claims were rejected by the learned Commissioner (Appeals) on the Ground that the refund claim is hit by the limitation prescribed in Section 11B of the Central Excise Act, 1944. 2. Brief facts of the case are that the appellants are ultimate owner of the residential flats sold to them by the builder who paid the service tax on the residential flats. As per the Circular No.108/2/2009-ST, dated 29.1.2009, there was no service tax liability on sale of the residential flats to the appellants. Admittedly, when no service tax was payable by the appellant therefore, they have filed a refund claim. The adjudicating authority san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad not been passed on by him to any other person. Thus, the application for refund has to be made before expiry of one year from the relevant date. In the facts and circumstances before us, the case is covered by Explanation (B)(f) meaning thereby, the application for refund should have been made in the present case within one year from the date of payment of duty. 13. The Revenue, therefore, approached the Tribunal and the Tribunal in upholding the order of the Assistant Commissioner came to a conclusion that the Challans which have been filed along with the refund application show that the Service Tax payments were made during the period 2006-2007 and 2007-2008 and last such challan was dated 1-12-2007. The Tribunal also noticed that the Service Tax liability for the period May, 2004 to March, 2006 was discharged in May, 2006. If the refund claim was submitted in the office of the Assistant Commissioner on 28-4-2010, then, it was clearly beyond the period of one year prescribed under Section 11B(1) of the Central Excise Act, 1944. 15. Mr. Desai would submit that an unconstitutional levy is also illegal. If the levy is unconstitutional meaning thereby it is null and void ab in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he given facts and circumstances cannot be said to be perverse. Both have rejected the claim as in their opinion it was stale and time barred. We do not see how such view can raise a substantial question of law. The view taken is imminently possible. We are, therefore, of the view that the Appeal fails and it is, accordingly, dismissed. "19. Before us, the undisputed position is that the amount was paid by the Appellant as Service Tax. That tax was not imposable or leviable on export of services was a clarification made by the Department and relying on that clarification, the refund of duty or Service Tax was claimed. This was squarely a case falling within the provisions of the Central Excise Act, 1944 and therefore, the rule of limitation under Section 11B was applied. That was applied when the application for refund was made invoking Section 11B of the Central Excise Act, 1944. We have no manner of doubt that when this was the provision invoked, same applies with full force including the rule of limitation prescribed therein. For these reasons, we are of the opinion that the decisions relied upon cannot be of any assistance." and also relied upon in case Jubilant Enterprises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant to the facts of this case. In these circumstances, I hold that the appellant are entitled for refund claim as filed in time and the provisions of Section 11B of the Central Excise Act, 1944 are not applicable to the facts of this case. Accordingly, impugned order is set aside. Appeal is allowed with consequential relief. The Adjudicating Authority is directed to implement the order within 30 days of the communication of the same." 4. However, with a view to avoid the circular limit the common appeal is filed. He has relied upon in the decision of Supreme Court in Suchitra Components Ltd. vs. Commissioner of Central Excise, Guntur, 2007 (208) ELT 321 (SC), wherein it has been observed as under:- "1. This appeal is directed against the final order No. 204/05- NB-A dated 14th January, 2005 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi in Appeal No. E/3422/93-NB-A. 2. We have heard Mr. A.R. Madhav Rao, learned Counsel for the appellant and Mr. K. Radhakrishna, learned Senior Counsel for the respondent. We have perused the orders passed by the lower Authorities and also of the Tribunal. The point raised by the learned Counsel for the appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s disposed of. " 6. The appeal stands disposed of." 4. The issue is also now covered by the decision of this court in D. B. Central /Excise Appeal No. 5/2012 D. B. Cental/Excise Appeal No. 5/2012 ( Commissioner of Central Excise Jaipur-1 Versus M/S National Engineering Ltd) decided on 01.02.2017, where while deciding the issue, this court held as under:- "6. Taking note of the CBEC Circular dt.17/12/2015 & 01/01/2016, the monetary limits which indisputably in the present appeal is less than Rs. 15 lacs, much less than what has been prescribed for filing appeal before the High Courts, deserve to be dismissed as not pressed. However, it is made clear that the substantial questions of law raised in the present appeal, if any, is left open to be examined in an appropriate proceeding, if arises in future. At the same time we consider it appropriate to observe that if the appeal falls in any of the exceptions as referred to in the Circular dt.17/12/2015, the Revenue will be at liberty to move an application for recalling of the order, if so advised. We also observe that though the above circular only specifies appeal but in our view, the reference filed earlier, will also be covered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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