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TMI Blog2024 (6) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... available to the effect that refund application beyond the period specified under Section 11B of the Central Excise Act, 1944 could not be entertained unless refund arose in consequence of a declaration of a provision/statute as unconstitutional, which is admittedly not the fact in the present case. The order passed by the Commissioner of Central Tax (Appeals-I), Pune is hereby confirmed - Appeal dismissed. - DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) AND MR. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) Shri Vishal Agarwal, Advocate with Shri Sunil Navandhar, Advocates for the Appellant Shri S.B.P. Sinha, Supdt., Authorised Representative for the Respondent ORDER Denial of refund of ₹85,83,430.15 of Service Tax paid erroneously for GTA under Reverse Charge Mechanism for the period between December 2013 and June 2017, claimed vide refund application dated 07.09.2014, on the primary ground of limitation by the Refund Sanctioning Authority, that got confirmed by the Commissioner (Appeals) in denying relief to the Assessee-Appellant before him, is assailed in this appeal. 2. Facts of the case, in a nutshell, is that Appellant Company is engaged in manufacture of Yeast, classifiable u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the ratio of judgment delivered in the case of ITC Limited Vs. Commissioner of Central Excise, Kolkata-IV reported in 2019 (368) ELT 216 (S.C.) that denied refund claim without modification of order of assessment/re-assessment passed in respect of Customs Act, giving its finding in the case of M/s. Shree Balaji Warehouse Others Vs. Commissioner of Central Excise Service Tax, Panchkula decided on 29.09.2023 that refund of Service Tax is maintainable in the absence of any challenge to the assessment order or reassessment in appeal under the Finance Act, 1994. He further submitted that in view of the decision of the Hon'ble Bombay High Court dated 28.10.2015 passed in the case of CCE, Nagpur Vs. M/s. SGR Infratech Ltd. in CE Appeal No. 26 of 2014, of this Tribunal in SGR Infratech Ltd. Vs. Commissioner of Central Excise, Nagpur reported in 2014 (11) TMI 755 CESTAT Mumbai and of the Hon'ble Bombay High Court also in the case of M/s. In House Productions Ltd. Vs. Commissioner of Service Tax, Mumbai reported in 2017-TIOL-1242-HC-MUM-CX, the issue has no more remained ambiguous that refund is to be allowed if payment is made under mistake of law and the said judgments squarel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld like to place on record that refund was rejected by the Refund Sanctioning Authority that also had received the approval of Commissioner (Appeals) on the ground of limitation and on merit. Maintainability of a proceeding on the ground of limitation being preliminary issue, the same is taken up at the first instance to render our findings on the issue. 6. Section 11B of the Central Excise Act, 1944 deals with claim of refund of duty and interest, if any, paid on such duty by making an application for refund before expiry of one year from the relevant date, which in the instant case is the date of payment. In view of operation of Section 83 of the Finance Act, 1994 refund of Service Tax under the Finance Act would also be done as per provision contained under Section 11B of the Central Excise Act, 1944. Admittedly, as revealed from appeal memo and the order passed by the Authorities below, for the period between December 2013 to June 2017, concerning payment of Service Tax refund application was made on 07.09.2018 after Appellant came to know that Service Tax was not payable on transportation of effluent. To Appellant, which it has also tried to establish through some judicial dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in them, (ii) that a defendant might have lost the evidence to dispute the stated claim, (iii) that persons with good causes of actions should pursue them with reasonable diligence . 23. Statutes of limitation are sometimes described as statutes of peace . An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. This court in Rajender Singh and others vs. Santa Singh and others [(1973) 2 SC 705] has observed: the object of law of Limitation is to prevent disturbance and deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party s own inaction, negligence or latches . In motichand vs. Munshi [(1969) 2 SSC 824], this court observed that this principles is based on the maxim interest republicae ut sit finis litum, that is the interest of the State requires that there should be end to litigation but at the same time law of Limitation are a means to ensuring private justice suppressing fraud and perjury, quickening diligence and preventing oppression . The reasons of placing the findings of the Hon'ble Supreme Court in the above paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re-opening 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 principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963 , has no application to such a claim for refund. (Underline to emphasise) 9. This being the findings of the Hon'ble Supreme Court there cannot be any departure from the fact that any decision of the Tribunal came subsequently that if helps an Assessee to discover the mistake of law under which he has paid any tax, he won t be entitled to seek recovery of the tax paid, not even through a civil proceeding. While acknowledging this findings, learned Counsel for the Appellant has taken us to the findings of the Commissioner concerning final assessment/reopening of assessment a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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