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TMI Blog2019 (7) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... er. This is because the refund accrued to the assessee-appellant by virtue of its export and not as a consequence of an order of the Tribunal. The impugned order and the rejection cannot sustain - appeal allowed - decided in favor of appellant. - MR. P. DINESHA, MEMBER (JUDICIAL) Shri. S. Ramachandran, Consultant for the Appellant Shri. K. Veerabhadra Reddy, Authorized Representative for the Respondent ORDER The appellant claiming to be a 100% EOU rendering pre-publication services and related services for books and journals and having availed input credit of various input services and also based on export of services, filed refund claim under Rule 5 of the CENVAT Credit Rules, 2004 ( CCR for short). 1.2 The Adjudicating Authority after s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly, sanctioned the refund; that the Revenue preferred an appeal against the refund before the Commissioner (Appeals); that the Commissioner (Appeals) vide impugned Order-in-Appeal No. 32/2019 (CTA-I) dated 21.01.2019 allowed the Revenue s appeal by setting aside the sanction order on the ground that the application for refund clam was not made within one year in terms of Section 11B of the Central Excise Act, 1944, etc. 3.2 Ld. Consultant drew support from the following decisions : (i) 3E Infotech Vs. CESTAT, Chennai 2018 (18) G.S.T.L. 410 (Mad.); (ii) Union of India Vs. ITC Ltd. 1993 (67) E.L.T. 3 (S.C.); (iii) Oil and Natural Gas Corporation Ltd. Vs. Union of India 2017 (354) E.L.T. 577 (Guj.); (iv) Joshi Technologies International ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 (14) S.T.R. 54 (Tri. Bang.); (ii) Casa Grande Co-operative Housing Vs. C.G.S.T., Mumbai South 2019-TIOL-178-CESTAT-MUM; 5. I have heard the rival contentions, have gone through the orders placed on record and have also gone through the various decisions/orders referred to during the course of arguments. 6.1 Albeit assessee pursued the alternate remedy, the decision of the Hon ble High Court of Judicature at Madras in the case of M/s. 3E Infotech (supra) comes to the rescue of the appellant despite the fact that there was no application for condonation of delay and despite the fact that the so-called advice was not even an obiter. This is because, in my opinion, the refund accrued to the assessee-appellant by virtue of its export and not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no tax shall be levied or collected except by authority of law. 13. On an analysis of the precedents cited above, we are of the opinion, that when service tax is paid by mistake a claim for refund cannot be barred by limitation, merely because the period of limitation under Section 11B had expired. Such a position would be contrary to the law laid down by the Hon ble Apex Court, and therefore we have no hesitation in holding that the claim of the Assessee for a sum of ₹ 4,39,683/- cannot be barred by limitation, and ought to be refunded. 14. There is no doubt in our minds, that if the Revenue is allowed to keep the excess service tax paid, it would not be proper, and against the tenets of Article 265 of the Constitution of India. On t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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