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TMI Blog2018 (4) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... o decide an issue referred to by a Single Member vide his interim order No. 20/2017 dated 07/09/2017. 2. The brief facts of the case are that the appellants filed two refund claims of service tax paid on reverse charge basis in respect of services received from foreign commission agents taxable under business auxiliary service. The appellants paid the service tax and later realized that in view of exemption under Notification No. 13/2003-ST dated 20/06/2003 no tax is payable. The said notification exempted business auxiliary service provided by commission agents in relation to sale or purchase of agricultural produce. The appellant were engaged in the business of export of rice and foreign agents provided such business auxiliary service. Realizing that the services received by them are exempt the appellants filed claims for refund of tax already paid. The claims were rejected by the Original Authority on the ground that these were barred by limitation. On appeal, the Commissioner (Appeals) confirmed such rejection. 3. On further appeal before the Tribunal, the matter was heard by a Single Member who passed the present interim order. The Single Member Bench referring to the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties have no power to go beyond this. 6. We have examined the decision of the Tribunal in Monnet International Ltd. (supra). The said decision relied on certain case laws regarding applicability of limitation of three years and non-applicability of Section 11B in certain situations. Further, we note that in the said case there was no tax liability at all as the services were not subjected to tax. In the present case, the services were liable to tax and by way of an exemption notification services in respect of certain commodities were exempted. One more important aspect to be considered is that the amount paid by the appellant has been deposited under a proper service tax head of account by a payment challan. The said amount has been appropriated by the Government as service tax. Later, the appellant realized that the services were exempt by a notification. The amount already paid was in the form of a tax through the Jurisdictional Authorities and the same has been accounted and appropriated by the Government as a tax. Section 11B of the Central Excise Act, 1944 made applicable to service tax refund clearly stipulates that any person claiming refund of any duty of excise to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no legal mandate to direct the tax authority to act beyond the statutory powers binding on them. The Hon ble Supreme Court in Mafatlal Industries Ltd. (supra) categorically held that no claim for refund of any duty shall be entertained except in accordance with the provisions of the statute. Every claim for refund of excise duty can be made only under and in accordance with Section 11B in the forms provided by the Act. The Apex court further observed that the only exception is where the provision of the Act whereunder the duty has been levied is found to be unconstitutional for violation of any of the Constitutional limitations. This is a situation not contemplated by the Act. We note in the present case there is no such situation of the provision of any tax levy in so far as the present dispute is concerned is held to be unconstitutional. As already held that the appellant is liable to pay service tax on reverse charge basis but for the exemption which was not availed by them. I hold that the decision of the Tribunal in Monnet International Ltd. (supra) has no application to decide the dispute in the present referred case. We take note of the decision of the Tribunal in XL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in reservations on the opinion expressed. The undisputed facts are that, in terms of Notification No. 13/2003-ST dated 20.06.2003 , no tax was payable by the appellants and it has been observed that in various cases, the Hon'ble High Courts and the Hon ble Apex Court has held that refund of money paid without applying the provisions of limitation under Section 11B, that the amount collected has no sanctity of law as the same is not a duty or a tax and accordingly, the same should be returned to the party. It was also observed that the Hon'ble High Courts and Hon ble Apex Court have exercises powers under constitution in Writ jurisdiction. Therefore, my Brother entertained view that decision in Monnet International Limited (supra) has no applicability to decide the present dispute. 3. I find that in the case of Parijat Construction vs. CCE, Nashik 2018 (359) ELT 113 (Bom.), the Hon'ble Bombay High Court has examined the issue in hand in Central Excise Appeal No. 306/2016, which has been decided on 13.10.2017, wherein the facts of the case are as under:- 2. The appellant is engaged in providing Commercial or Industrial Construction service and are registered a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res integra. The two decisions of the Division Bench of this Court in Hindustan Cocoa (supra) and Commissioner of Central Excise, Nagpur v. M/s. SGR Infratech Ltd. (supra) are squarely applicable to the facts of the present case. 6. Both decisions have held the limitation prescribed under Section 11B of the said Act to be not applicable to refund claims for service tax paid under a mistake of law. The decision of the Supreme Court in the case of Collector of C.E., Chandigarh v. Doaba Co-Operative Sugar Mills (supra) relied upon by the Appellate Tribunal has in applying Section 11B, limitation made an exception in case of refund claims where the payment of duty was under a mistake of law. We are of the view that the impugned order is erroneous in that it applies the limitation prescribed under Section 11B of the Act to the present case were admittedly appellant had paid a Service Tax on Commercial or Industrial Construction Service even though such service is not leviable to service tax. We are of the view that the decisions relied upon by the Appellate Tribunal do not support the case of the respondent in rejecting the refund claim on the ground that it was barred by limitation. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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