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TMI Blog2008 (7) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... ber (Judicial) Shri T.K. Jayaraman, Member (Technical) (Final Order Nos. 847-848/2008 dt. 24.7.2008 certified on 29.7.2008 in Appeal Nos. ST/170-171/2006) [Order per T. K. Jayaraman Member (Technical)] - There are actually two Orders-in-Revision decided by the Commissioner of Central Excise, Customs & Service Tax, Mysore. The details of both the appeals are given in the following Tabular Column: Sl. No. Appeal Nos. Name of the Parties Revision Order No. & Date Refund Amount 1. ST/170/2006 M/s Mysore Leasing and Finance Ltd ., Mysore 02/ST/2007 27.03.2007 Rs. 46,619/- 2 ST/171/2006 M/s M.C.I. Leasing (P) Ltd., Mysore 03/ST/2007 27.03.2007 Rs. 2,31,658/- 2. S/Shri V. Raghuraman and CR Raghavendra, the learned Advocates app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot;interest" income earned by the appellants. Article 265 of the Constitution prohibits collection of taxes without authority of law. Law does not authorize to collect service tax on interest on loans. This is specifically provided for under Law. Therefore, action of payment or collection of service tax on interest on loans is without authority of law. It was urged that Section 11B would be applicable only if refund is sought that of 'service tax' which is otherwise leviable. Collection made without the authority of law cannot be termed as illegal levy attracting the provisions of the Act., They relied on the following case-laws in support of their contentions: (a) National Tobacco Corp of India - 1978 (2) ELT J416 (SC) (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Assistant Collector of Customs - 1987 (30) ELT 641 (SC) (d) International Security Organization Vs. CCE, New Delhi - 2002 (49) RLT 36 (CEGAT-Del) = 2002 (144) ELT 343 (Tri.-Del) (e) Miles India Ltd. Baroda Vs. Appellate Collector of Custom Bombay - 1983 (13) ELT 1026 (C.E.G.A.T) (f) CCE, Hyderabad-III Vs. XL Telecom Ltd. - 2006 (206) ELT 303 (Tri.-Bang.) (g) Avanti Feeds Ltd. Vs. CC, Chennai - 2007 (80) RLT 681 (CESTAT-Ban.) = 2007 (213) ELT 280 (Tri.-Bang.) 7. On a very careful consideration of the issue, we find that even though the appellant had paid service tax on finance charges, which is not leviable to service tax during the relevant time when they had to claim the refund that should be within the corners of Section 11B as st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pectfully agree with it. Such a claim is maintainable both by virtue of the declaration contained in Article 265 of the Constitution of India and also by virtue of Section 72 of the Contract Act. In such cases, period of limitation would naturally be calculated taking into account the principle underlying Clause (C) of sub-section (1) of Section 17 of the Limitation Act, 1963. A refund claim in such a situation cannot be governed by the provisions of the Central Excise and Salt Act or the Customs Act, as the case may be, since the enactments do not contemplate any of their provisions being struck down and a refund claim arising on that account. In other words, a claim of this nature is not contemplated by the said enactments and is outside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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