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TMI Blog2019 (1) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11B are clear and unambiguous, different interpretations cannot be placed by the authorities functioning under the statute and they are bound to obey the dictates/provisions contained therein. In view of the above settled principles of law and in view of the fact that the refund applications were filed and decided under Section 11B ibid, the time limit prescribed there-under was strictly applicable for deciding such issue. Since, the authorities below have rejected the refund applications on the ground of limitation, there is no infirmity in such orders, as the same are in conformity with the statutory provisions. Appeal dismissed - decided against appellant. - Appeal No. ST/86347/2018 - A/85048/2019 - Dated:- 11-1-2019 - M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed beyond the prescribed time limit provided under Section 11B of the Central Excise Act, 1944 made applicable to service tax matters under Section 83 of the Finance Act, 1994. On appeal, the learned Commissioner (Appeals) vide the impugned order dated 28.12.2017 has upheld rejection of the refund application by the original authority. 3. Learned Advocate appearing for the appellant submitted that for the first time the appellant became aware about the decision rendered by this Tribunal in the case of Matunga Gymkhana vs. Commissioner of Service Tax, Mumbai 2015 (38) STR 407 (Tri-Mum), holding that contribution received by the housing society from its members is not exigible to service tax under the Head Club or Association Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me limit prescribed under the statute is strictly applicable for consideration of the refund application and the statutory authorities are not empowered to relax the limitation period, while entertaining the application filed under the statute. In support of such arguments, the learned D.R. has relied on the judgments of the Hon ble Supreme Court in the case of Miles India Ltd. 1987 (30) ELT 641 (SC), Collector v. Doaba Co-operative Sugar Mills 1988 (37) ELT 478 (SC) and Assistant Collector of Customs v. Anam Electrical Manufacturing Co. 1997 (90) ELT 260 (S.C.). The learned D.R has also relied on the judgment of the Hon ble Supreme Court in the case of Mafatlal Industries Ltd. (supra) to state that where the tax levy is declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the present appellant, the date of payment of service tax should be considered as the relevant date. Section 11B ibid mandates that the refund application has to be filed before the expiry of one year from the relevant date. In this case, it is an admitted fact on record that the refund application was filed by the appellant beyond the statutory time limitation prescribed under the statute. Therefore, the refund sanctioning authority adjudicating the refund issue under the statute has no option or scope to take a contrary view, than the position prescribed in the statute, to decide the issue differently. In other words, when the wordings of Section 11B are clear and unambiguous, different interpretations cannot be placed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since, the authorities below have rejected the refund applications on the ground of limitation, I do not find infirmity in such orders, as the same are in conformity with the statutory provisions. 6.2 The ratio of the judgment delivered by the constitutional Bench of Hon ble Supreme Court in the case of Mafatlal Industries (supra) will not support the case of the appellant inasmuch as, when any provision in the statute has been held to be unconstitutional, refund of tax under such statute will be outside the scope and purview of such enactment and under such circumstances, refund can be claimed by way of a suit or by way of a writ petition. The Hon'ble Apex Court have ruled that where the tax levy is struck down as unconstitutional ..... X X X X Extracts X X X X X X X X Extracts X X X X
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