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TMI Blog2021 (4) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... ned with customs formalities. They issue invoices to customers towards storage charges and for no other charges. These agencies are not receiving any commission from the principal but only rental for storage facility, whereas a C & F agent's remunerations is in the form of commission. The transactions between the parties are not transactions between principal and an agent but between princpal and principal. These agencies are neither receiving any despatch orders from the owners of the goods, nor are they arranging for the despatch of goods as per their directions by engaging transport, as is done normally by C & F agents. They are also not carrying out any service directly or indirectly in connection with clearing and forwarding operations. Therefore, services rendered by such agencies, in relation to storage of cargo, cannot be considered to be in the nature of clearing and forwarding and such agencies cannot be considered as ''clearing and forwarding agents''. 12.However, under the Finance Bill, 2002, ''storage and warehousing services for goods including liquids and gases'' is proposed to be made to liable to service tax. Section 65(87) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited. The learned counsel for the petitioner further submitted that the petitioner is not aware as to the status of the refund claim filed by M/s.IMC Limited. She however submits that the petitioner has come to know the writ petition was pending before this Court at the behest of M/s.IMC Limited. 6. The learned counsel for the petitioner submits that though the order dated 20.10.2009 passed in Assistant Commissioner of Service Tax Chennai Vs. M/s.Nataraj and Venkat Associates has been reversed by an order dated 23.04.2013 in W.A.No.129 of 2010 of the Division Bench of this Court, nevertheless, the petitioner is entitled for a mandamus. 7. The learned counsel for the petitioner has filed a copy of the order of the Punjab and Haryana High Court at Chandigarh passed in M/s.Sarita Handa Exports (P) Ltd Vs. Union of India and others, in C.W.P.No.17220 of 2010 which has been affirmed by the Hon'ble Supreme Court. She further submitted that the decisions of the other High Courts granting refund under similar circumstances refund claims have been allowed. 8. Opposing the prayer for grant of refund, the learned counsel for the respondent submits that the writ petition was liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears later another view of law is taken by another court in another person's case. Nor is there any provision in the Act for re-opening the concluded proceedings on the aforesaid basis. In short, no claim for refund is permissible except under and in accordance with Rule 11 and Section 11B. An order or decree of a court does not become ineffective or unenforceable simply because at a later point of time, a different view of law is taken. It observed that if this theory is applied universally, it will lead to unimaginable chaos. 15. Therefore, the theory of mistake of law and the consequent period of limitation of three years from the date of discovery of such mistake of law cannot be invoked by an assessee taking advantage of the decision in another assessee's case. All claims for refund ought to be, and ought to have been, filed only under and in accordance with Rule 11/Section 11B and under no other provision and in no other forum. An assessee must succeed or fail in his own proceedings and the finality of the proceedings in his own case cannot be ignored and refund ordered in his favour just because in another assessee's case, a similar point is decided in favour of the manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (89) E.L.T. 247 (S.C.), the Hon'ble Supreme Court has laid down the following guidelines in Assistant Collr. Of Cus. Vs. Anam Electrical Manufacturing Co., 1997 (90) E.L.T. 260 (S.C.):- (1) Where a refund application was filed by the manufacturer/purchaser beyond the period prescribed by the Central Excise Act/Customs Act in that behalf, such petition must be held to be untenable in law. Even if in any appeal, suit or writ petition, direction has been given that the refund application shall be considered with reference to the period of limitation prescribed in the Central Excise Act/Customs Act - or that the period of limitation shall be taken as three years - such a direction of the Appellant Court/Civil Court/High Court shall be deemed to be unsustainable in law and such direction shall be set aside. The period prescribed by the Central Excise Act/Customs Act for filing a refund application in the case of "illegal levy" cannot be extended by any Authority or Court. (2) Where, however, a refund application was filed within the period prescribed by the Central Excise Act/Customs Act but has been dismissed wholly or partly on any ground and the said order is questioned by way o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court or the Supreme Court but fails in his challenge to constitutionality, he cannot take advantage of the decision in the case of another person striking down the said provision, as explained in the judgment. This rule is evolved in the particular context of refund claims under these two enactments and has to be observed. (6) Where a refund application or an appeal is preferred under and in accordance with the directions (1), (2), (3) and (4) above, the same shall be entertained only if the applicant for refund/appellant files affidavit stating that he has not passed on the burden of the duty, which is claimed by way of refund, to another person. In case the applicant for refund is a company or a society, the affidavit shall be sworn by the Managing Director of the Principal Officer of the Company or the Society, as the case may be. Such an affidavit shall be treated as an averment/assertion which an applicant for refund has to make in terms of the judgment in Mafatlal. 7(a) Where the refund claim is rejected by this Court, the assessee who has already obtained any amount by way of refund shall be liable to pay back the same to the Department and the Department shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board of Excise and Customs issued clarification bearing reference Order No. 2/1/2002-ST dated 24.4.2002. Thus, the period prescribed under section 11B of the Central Excise Act, 1944 had expired long before the above were clarification was issued. 23. The Hon'ble Supreme Court in Commissioner Vs. Allied Photographics India (P) Ltd., 2004 (166) E.L.T. 3 (S.C.) considered the case of distributor who had borne the incidence of tax and posed the following question:- " The point which still remains to be decided is whether the respondent herein was entitled to refund without complying with Section 11B of the Act on the ground that it had stepped into the shoes of NIIL (manufacturer) which had paid the duty under protest?" 24. The Hon'ble Supreme Court in para 15 has answered the issue as follows:- 15. Mr. Ganesh, learned Senior Counsel appearing on behalf of the respondent vehemently urged that the issue arising in the present matter is squarely covered by the decision of Division Bench of this Court in the case of National Winder v. Commissioner of Central Excise, Allahabad [2003 (154) E.L.T. 350] in which it has been held that if duty is paid by a manufacturer under protest th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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