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TMI Blog2019 (6) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment, decree, order or direction. As per Clause (f) of Explanation (B) to Section 11B, in any case other than provided under clauses (a) to (ec), the relevant date is the date of payment of duty. There is no dispute with regard to the fact the service tax payable by the appellant would come within the ambit of duty of excise mentioned in Section 11B(1) of the Act. However, the contention of the appellant is that the amount paid by it was actually not due from it as service tax because the value of the materials supplied free of cost by the service recipients cannot be included in computing the taxable value of the services - There is no basis for the contention raised by the learned counsel for the appellant that the amount was paid by the appellant on account of coercion and threat made by the authorities. There is no material produced in support of this contention. In the instant case, as noticed earlier, when the amount was levied from the appellant, the demand for levy was legal. The amount was paid by the appellant as service tax. The amount paid lost the colour of tax only when the issue was finally decided by the Supreme Court in COMMISSIONER OF SERVICE TAX ETC. VERSUS M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee was beyond the period of limitation provided under Section 11B(1) of the Act - decided against assessee. Appeal dismissed - decided against assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... ided under Section 11B of the Act is not applicable to the refund application submitted by the appellant. Learned counsel has also contended that, even before filing the application for refund in the prescribed form, the appellant had made representation to the department for refund of the amount, stating that the amount collected from the company was not due from it. Learned counsel would also contend that the amount was paid on account of coercion and threat made by the authorities and the payment was made under protest and it cannot be treated as payment of service tax to attract Section 11B of the Act. Alternatively, learned counsel would submit that the period of limitation has to be computed from the date of judgment of the Supreme Court in Commissioner of Income Tax v. Bhayana Builders (P) Limited [(2018) 3 SCC 782] which has given finality to the issue as to whether value of materials supplied free of cost by service recipient is exigible to service tax or not. 9. Per contra, learned Standing Counsel for the department has contended that, when the amount was paid by the appellant, it had the colour of tax and therefore, Section 11B of the Act is attracted and the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duty. 12. There is no dispute with regard to the fact the service tax payable by the appellant would come within the ambit of duty of excise mentioned in Section 11B(1) of the Act. However, the contention of the appellant is that the amount paid by it was actually not due from it as service tax because the value of the materials supplied free of cost by the service recipients cannot be included in computing the taxable value of the services. Therefore, it is contended that the amount claimed by way of refund is actually not an amount paid towards service tax and the period of limitation provided under Section 11B(1) of the Act is not applicable to the application made for refund of such amount. 13. In Bhayana Builders (supra), the Supreme Court has held that the amount of service tax charged should be for the service provided. It is not any amount charged by the service provider which can become the basis of value on which service tax becomes payable, but the amount charged has to be necessarily a consideration for the service provided. There shall be a nexus between the amount charged and the service provided. Any amount charged which has no nexus with the taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat is, cases of illegal levy (3) The cases where the assessee disputes the levy and fights it out upto the first appellate or the second appellate/revisional level or the High Court and gives up the fight, being unsuccessful therein and pays the duty demanded or it is recovered from him, as the case may be and later, in another case of some other person, the Supreme Court holds that the levy of that kind is not exigible in law, that is, cases of mistake of law. The Apex Court has held that all claims for refund, arising in whatever situations (except where the provision under which the duty is levied is declared as unconstitutional), has necessarily to be filed, considered and disposed of only under and in accordance with the relevant provisions relating to refund, as they obtained from time to time. The Apex Court has held that where a refund of tax duty is claimed on the ground that it has been collected from a person by misinterpreting or misapplying the provisions of the relevant statute or by misinterpreting or misapplying any of the rules, regulations or notifications issued under such enactment, such a claim has necessarily to be preferred under and in accordance with the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und of the amount. The application for refund in the prescribed form was filed beyond the period of one year from the last date of payment of duty. 21. There is a feeble plea raised by the appellant that the tax was paid under protest. The second proviso to Section 11B(1) of the Act states that the limitation of one year shall not apply where the duty is paid under protest. However, there is no material to find that the payment made was under protest. Protest made subsequently in any representation made to the department is not sufficient.. 22. Learned counsel for the appellant has pointed out that the appellant had sent a letter dated 13.09.2013 (Annexure-D) to the department claiming refund of the amount and the claim made therein was within the time prescribed by Section 11B(1) of the Act. It was only a letter and not an application for refund of the amount in the prescribed form. Section 11B (1) of the Act specifically stipulates that an application for refund of duty has to be made in such form and manner as may be prescribed. The letter sent by the appellant to the department cannot be treated as an application for refund of amount as envisaged under Section 11B (1) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that the appellant is entitled to take advantage of the decision in Bhayana Builders (supra) because the proceedings initiated by it for refund of the amount had not attained finality when the decision in Bhayana Builders (supra) was rendered by the Supreme Court. But, learned Standing Counsel for the department invited our attention to certain passages in Mafatlal Industries (supra) and reiterated his contention that the assessee could not rely upon the decision in another case for the purpose of refund of the amount and that it would have to obtain a final order in its own proceedings. 27. In Mafatlal Industries (supra), the Supreme Court has raised the question in the following terms: "We may now consider a situation where a manufacturer pays a duty unquestioningly - or he questions the levy but fails before the original authority and keeps quite. It may also be a case where he files an appeal, the appeal goes against him and he keeps quiet. It may also be a case where he files a second appeal/revision, fails and then keeps quiet. The orders in any of the situations have become final against him. Then what happens is that after an year, five years, ten years, twenty yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment or levy has become final in his case, he cannot seek to reopen it nor can he claim refund without reopening such assessment/order on the ground of a decision in another person's case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief". 29. The dictum laid down by the Apex Court as above would apply if the proceedings initiated by the appellant against assessment had attained finality and if a request is made to re-open the proceedings on the basis of the decision rendered by the Supreme Court in a case filed by another person. It is true that the position or situation in the present case is slightly different. It is not a case in which assessment of service tax was made and a demand notice was issued for payment of tax and the amount was paid in response to such demand. It is a case in which audit of the records of the assessee company was conducted by the department and shortage of tax paid was pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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