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TMI Blog2023 (5) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... ording the finding on the issue of time bar which is identical in the present cases this order needs to be upheld on this issue. In case of COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY ORS. [ 2018 (7) TMI 1826 - SUPREME COURT ], a five judges bench of Hon ble Supreme Court has held that Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification and When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. In view of the decision of the Hon ble Apex Court, interpreting an exemption notification, in strict manner so as to deny inadmissible refund claimed in respect of service tax paid on the inward transportation service cannot be faulted with. Accordingly the impugned order to the extent it hold that refund claim in respect of inward transportation service is inadmissible cannot be faulted with. It is now settled law tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 passed by the Assistant Commissioner, Central Excise, Customs Service Tax, Division- Wardha. 1.2 Appeal Nos ST/88153/2018 ST/87126/2021 are directed against order in appeal No NGP/EXCUS/000/ APPL/461- 462/2017-18 dated 08.11.2017. By the impugned order Commissioner (Appeal) has held as follows: The order in Original No 09/ST/Ref/Dn Wardha/2015-16 dated 28.12.2015 and order in Original No 08/ST/Ref/Dn Wardha/2015-16 dated 28.12.2015 passed by the assistant commissioner, Central Excise, Customs Service tax, Division Wardha are upheld. 2.1 Appellant is having service tax registration No- AACB9272AST002 under the category of Business Auxiliary service, Works Contract services, Goods Transport Agency Services, Manpower supply agency services, and other taxable services other than the 119. They are also registered under Central Excise and engaged in the business of manufacture of Chemical Fertilizers. The appellant had received services from GTA for transportation of raw materials from different sellers to their Pulgaon factory and also for transportation after manufacturing of Chemical Fertilizers which is sent to different locations and the appellant had paid t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. 3.2 For the above reason these appeals could have been dismissed under Rule 20 of the CESTAT Procedure Rules 1982 reproduced below, for non prosecution or could have been decided ex-parte after hearing the authorized representative. RULE 20. Action on appeal for appellant s default. Where on the day fixed for the hearing of the appeal or on any other day to which such hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or hear and decide it on merits. 3.2 Heard the authorized representative Shri Badhe Piyush Barasu, Deputy Commissioner. He reiterated the findings recorded in the impugned order. 4.1 I have considered the impugned orders along with the submissions made in appeal and during the course of arguments. 4.2 Appeal No ST/86554/2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 29. As per clause (1) of B of Explanation given to sub section (5) of Section 11 B which read as relevant date means in any other case, the date of payment. The claim shall be filed within one year from the date of payment of Service tax made by the claimant. 30. In case of Bajaj Foods Ltd. v. Commissioner, reported in 2015 (320) E.L.T. A197 (Guj.), The Hon'ble High Court has discussed the issue relying upon the decision of Hon'ble Apex Court and held as under. The admitted facts are that the refund has been claimed beyond the period of limitation i.e. three years after expiry of the date of refund. In the case of Collector of C.E., Chandigarh v. Doaba Cooperative Sugar Mills reported in 1988 (37) E.L.T. 478 (S.C.), the Apex Court held that so far as the refund of duty under the Customs Act, 1962, the Customs Authorities are bound by the limitation provided under the Act and after period of limitation, no refund is permissible. The relevant observations in the case of Collector of C.E., Chandigarh v. Doaba Co-operative Sugar Mills (supra) reads as under : (6) It appears that where the duty has been levied without the authority of law or without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such cases as tax cannot be retained without authority of law, not acceptable because in that case statutory provisions prescribing limitation period would become redundant - Every case of refund is for tax/duty paid but not payable - There being no other provision of refund, time limit prescribed in Section 11B of Central Excise Act, 1944 has to be mandatorily followed - Tribunal functioning under Central Excise Act/Customs Act, cannot go beyond the statute and relax time limitation prescribed as per law - Refund claim hit by limitation and correctly rejected by adjudicating authorities - Impugned order upheld - Section 11B of Central Excise Act, 1944 as applicable to Service Tax vide Section 83 of Finance Act, 1994. 32. Further I also rely on the decision of the Hon'ble Bombay High Court in the case of M/s Andrew Telecom (I) Pvt. Ltd., Vs. CCE, Goa reported in 2014(34)STR 562 (Bom), wherein the Headnote and the relevant para 19 and 20 is reproduced below:- Refund - Limitation - Service Tax on export of services - For period May, 2004 to March, 2006 discharged in May, 2006 - That tax was not imposable, and relying on clarification by Department, its refund cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation, not tenable even if tax is paid under a mistake of law - Refund not admissible - Section 11B of Central Excise Act, 1944 as applicable to Service Tax vide Section 83 of Finance Act, 1994 - Article 226 of Constitution of India. [paras 7, 8, 9] 34. The appellant in the instant case filed the Refund claim on 19-8-2015 for the period 2013-14. They should have filed the same within one year from the date of payment of Service Tax. The payment of Service Tax for the second half of 2013-14 was 31st March 2014 and the same should have been filed before 31st March 2015. appellant is time barred. Hence the refund claim filed by the 35. In view of the above pronouncements, I find that the issue of applicability of time limitation under Section 11B of the central Excise Act 1944 argued in the present case is squarely covered in above mentioned decisions which clearly held that departmental authorities including the Tribunal are bound by the statute and when the statute does not provide for refund beyond period of limitation, there is no question of allowing the refund. 4.3 Undisputedly the refund claim has been filed by the appellant much beyond the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coal, rock sulphate, etc.. 27. I would like to mention here that in the Refund claim for Rs. 19,08,453/- pertaining to period April 2014 to March 2015, the period pertaining to 1-4-2014 to 20-8-2014 was filed beyond one year from the date of payment. The Refund claim covering the period 21-8-2014 to 31-3- 2015 is well within the time period. 28. Hence first I would like to deal with the period 1-4-2014 to 20-8- 2014. The levy, assessment and collection of Service Tax and to the extent permissible by law is with the aid of the Central Excise Act, 1944 and by certain provisions of the Finance Act, the Central Excise Act, 1944 has been made applicable in relation to the refund of amount of Service Tax paid by the assessee. 29. On this issue, I would like to rely on the decision of the Hon'ble Tribunal in the case of M/s Benzy Tours and Travels Pvt. Ltd., Vs. CCE, Mumbai reported in 2016(43)STR 625 (Tri.- Mumbai), the headnote of which is reproduced below:- . 30. Further I also rely on the decision of the Hon'ble Bombay High Court in the case of M/s Andrew Telecom (I) Pvt. Ltd., Vs. CCE, Goa reported in 2014(34)STR 562 (Bom), wherein the Headnote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso sample copy of the invoice. The contract states that The supplier shall supply the above mentioned fertilizers on the following rates per ton FOR storage centres/double lock centres of the M.P. Markfed in Madhya Pradesh, exclusive of Entry tax VAT, exclusive of subsidy as approved by Govt of India from time to time and CST, levies, duties, as applicable. Therefore, Govt. duties are not the liability of the supplier, i.e. the appellant. Also, the lower authority has clearly in his order stated that in the Cost Audit report for the year 2013-14, the freight and transportation charges are included in that the costing of fertilizers from which it is clearly established incidence of duty has been passed by the appellant to the buyer of the goods. The appellant is therefore not entitled to receive the refund amount. The Lower authority's order the said refund claim to be credited to Consumer Welfare Fund is accordingly upheld. 36. Now coming to the Refund claim of Rs. 8,06,550/-pertaining to the period April 2015 to July 2015, which includes service tax on inward freight of Rs. 3,23,611/- and service tax on outward freight Rs. 4,82,939/-. Applying the same ratio as ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o against the legislative intent. As noted above, if literalism is at the far end of the spectrum, wherein it accepts no implications or inferences, then strict interpretation can be implied to accept some form of essential inferences which literal rule may not accept. 25. We are not suggesting that literal rule de hors the strict interpretation nor one should ignore to ascertain the interplay between strict interpretation and literal interpretation . We may reiterate at the cost of repetition that strict interpretation of a statute certainly involves literal or plain meaning test. The other tools of interpretation, namely contextual or purposive interpretation cannot be applied nor any resort be made to look to other supporting material, especially in taxation statutes. Indeed, it is well-settled that in a taxation statute, there is no room for any intendment; that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification. Equity has no place in interpretation of a tax statute. Strictly one has to look to the language used; there is no room for searching intendment nor drawing any presumption. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It may thus be taken as a maxim of tax law, which although not to be overstressed ought not to be forgotten that, the subject is not to be taxed unless the words of the taxing statute unambiguously impose the tax on him , [Russel v. Scott, (1948) 2 All ER 1]. The proper course in construing revenue Acts is to give a fair and reasonable construction to their language without leaning to one side or the other but keeping in mind that no tax can be imposed without words clearly showing an intention to lay the burden and that equitable construction of the words is not permissible [Ormond Investment Co. v. Betts, (1928) AC 143]. Considerations of hardship, injustice or anomalies do not play any useful role in construing taxing statutes unless there be some real ambiguity [Mapp v. Oram, (1969) 3 All ER 215]. It has also been said that if taxing provision is so wanting in clarity that no meaning is reasonably clear, the Courts will be unable to regard it as of any effect [IRC v. Ross and Coutler, (1948) 1 All ER 616]. Further elaborating on this aspect, the Learned author stated as follows : Therefore, if the words used are ambiguous and reasonable open to two interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of interpretation is given to the subject and there is nothing unjust in a taxpayer escaping if the letter of the law fails to catch him on account of Legislature s failure to express itself clearly . 27. Now coming to the other aspect, as we presently discuss, even with regard to exemption clauses or exemption notifications issued under a taxing statute, this Court in some cases has taken the view that the ambiguity in an exemption notification should be construed in favour of the subject. In subsequent cases, this Court diluted the principle saying that mandatory requirements of exemption clause should be interpreted strictly and the directory conditions of such exemption notification can be condoned if there is sufficient compliance with the main requirements. This, however, did not in any manner tinker with the view that an ambiguous exemption clause should be interpreted favouring the revenue. Here again this Court applied different tests when considering the ambiguity of the exemption notification which requires strict construction and after doing so at the stage of applying the notification, it came to the conclusion that one has to consider liberally. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an exemption notification, in strict manner so as to deny inadmissible refund claimed in respect of service tax paid on the inward transportation service cannot be faulted with. Accordingly the impugned order to the extent it hold that refund claim in respect of inward transportation service is inadmissible cannot be faulted with. 4.8 It is now settled law that all the refund claims need to be examined as per the provisions of the section 11B and it is for the claimant to establish that the burden of the tax paid has not been passed on to the consumer of the goods or services. In case the claimant fails to establish the same the refund even if admissible needs to credited to Consumer welfare Fund. Hon ble Supreme Court has in case of Mafatlal Industries [1997 (89) ELT 247 (SC)] held as follows: 99. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment. (i) Where a refund of tax/duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Salt Act or the Customs Act, as the case may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal - which is not a departmental organ - but to this Court, which is a civil court. (ii) Where, however, a refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. This principle is, however, subject to an exception : where a person approaches the High Court or Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be re-opened on the basis of a decision on another person s case; this is the ratio of the opinion of Hidayatullah, CJ. in Tilokchand Motichand and we respectfully agree with it. Such a claim is ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched. (iv) It is not open to any person to make a refund claim on the basis of a decision of a Court or Tribunal rendered in the case of another person. He cannot also claim that the decision of the Court/Tribunal in another person s case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment of 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 princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders of an Authority, Tribunal or Court or otherwise. (ix) The amendments made and the provisions inserted by the Central Excises and Customs Law (Amendment) Act, 1991 in the Central Excises and Salt Act and Customs Act are constitutionally valid and are unexceptionable. 4.8 Both the authorities have after consideration of the facts on recorded have arrived at the finding that the burden of the tax claimed as refund has been passed on by the appellant to their consumers. The finding recorded by both the authorities, on this aspect cannot be said to be perverse and should not be interfered with. The impugned order has relied on the cost accountant certificate to hold that the burden of the tax paid has been built in the price to the end consumer. The cost accountant certificate supports the view taken. Once the burden of the tax paid has been passed on to the consumer, the admissible refund needs to be credited to consumer welfare fund as has been held in the impugned order. 4.9 Accordingly I do not find any merits in these two appeals. 5.1 The appeals are dismissed as held in para 4.3 4.9. ( Order pronounced in the open court ) - - TaxTMI - TMITax - Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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