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TMI Blog2019 (10) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in favor of appellant. - Service Tax Appeal No. 41042 of 2019 - FINAL ORDER NO. 41166 / 2019 - Dated:- 15-10-2019 - MR. P. DINESHA, MEMBER (JUDICIAL) Shri. N.K. Bharath Kumar, Consultant for the Appellant Shri. K. Veerabhadra Reddy, Authorized Representative for the Respondent ORDER This appeal is filed by the assessee against the Order-in-Appeal No. 34/2019 (CTA-II) dated 28.02.2019 passed by the Commissioner of G.S.T. and Central Excise (Appeals-II), Chennai. The only grievance of the appellant in this appeal is the denial of refund claim made by them for the refund of Service Tax of ₹ 11,32,500/- paid in excess by them. 2. Facts are not in dispute. The refund claim was made vide application in Form-R dated 15.05.2018; Show Cause Notice was issued thereafter i.e., on 26.06.2018, to which the appellant filed their reply; thereafter, Order-in-Original No. 96/2018 (R) dated 22.11.2018 came to be passed and the Adjudicating Authority has in the said Order-in-Original held that the appellant should have filed the claim for refund before one year from the relevant date i.e., from the date of payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cause Notice and paragraph 14.2 of the findings/order of the Adjudicating Authority, which view has been upheld by the Ld. First Appellate Authority in the impugned order. 7.2.1 The Ld. AR for the Revenue placed heavy reliance on the order of the Hyderabad Bench of the Tribunal in the case of M/s. Oil India Ltd. (supra) and particularly referred to paragraphs 5 and 6, to buttress his contention that the officers have no jurisdiction since no provision of the Act, including Section 11B, applies to the present case. 7.2.2 With due respects and in stark contrast to the minority view in the decision in M/s. Mafatlal Industries Ltd. Vs. Union of India reported in 1997 (89) E.L.T. 247 (S.C.) relied upon by the Hyderabad Bench, decided by a Constitutional Bench of nine judges, the majority view, which is at paragraph 68, reads as under : 68 . Re. : (I) : Hereinbefore, we have referred to the provisions relating to refund obtaining from time to time under the Central Excises and Salt Act. Whether it is Rule 11 (as it stood from time to time) or Section 11B (as it obtained before 1991 or subsequent thereto), they invariably purported to be exha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respected so long as it stands. The validity of these provisions has never been seriously doubted. Even though in certain writ petitions now before us, validity of the 1991 (Amendment) Act including the amended Section 11B is questioned, no specific reasons have been assigned why a provision of the nature of sub-section (3) of Section 11B (amended) is unconstitutional. Applying the propositions enunciated by a seven-Judge Bench of this Court in Kamala Mills, it must be held that Section 11B [both before and after amendment] is valid and constitutional. In Kamala Mills, this Court upheld the constitutional validity of Section 20 of the Bombay Sales Tax Act (set out hereinbefore) on the ground that the Bombay Act contained adequate provisions for refund, for appeal, revision, rectification of mistake and for condonation of delay in filing appeal/revision. The Court pointed out that had the Bombay Act not provided these remedies and yet barred the resort to civil court, the constitutionality of Section 20 may have been in serious doubt, but since it does provide such remedies, its validity was beyond challenge. To repeat - and it is necessary to do so - so long as Section 11B is con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oints of time, it must be held that any and every ground including the violation of the principles of natural justice and infraction of fundamental principles of judicial procedure can be urged in these appeals, obviating the necessity of a suit or a writ petition in matters relating to refund. Once the constitutionality of the provisions of the Act including the provisions relating to refund is beyond question, they constitute law within the meaning of Article 265 of the Constitution. lt follows that any action taken under and in accordance with the said provisions would be an action taken under the authority of law , within the meaning of Article 265. In the face of the express provision which expressly declares that no claim for refund of any duty shall be entertained except in accordance with the said provision, it is not permissible to resort to Section 72 of the Contract Act to do precisely that which is expressly prohibited by the said provisions. In other words, it is not permissible to claim refund by invoking Section 72 as a separate and independent remedy when such a course is expressly barred by the provisions in the Act, viz., Rule 11 and Section 11B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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