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TMI Blog2024 (9) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Act, 1944 as made applicable to matters relating to service tax under Section 83 of the Finance Act, 1994, any application for refund of duty/tax shall be filed before the expiry of one year from the relevant date prescribed therein. On the above basis and as per the condition 3(g) of the aforesaid Notification, the refund claim shall be filed within one year from the date of export of the goods for which such input services were used. The case in hand does not relate to the first category of unconstitutional levy or the third category of refund on the basis of the judgement delivered by the Hon ble Supreme Court. It squarely falls under the second category of duty/tax paid by the claimant which could at the most be treated as illegal levy. However, even in such cases, the legal provisions of Section 11B of the Central Excise Act, 1944 as made applicable to service tax, would apply for refund of service tax. With respect to the time limit for filing of a refund claim in such case, it is mandated under said Section 11B of the Act of 1944 that such refund claim is required to be filed within one year from the relevant date. It is a fact on record that the Notification No.41/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013 Rs.9,99,183/- 06.06.2018 2 July, 2013 to September, 2013 Rs.10,35,931/- 06.06.2018 3 October, 2013 to December, 2013 Rs.7,51,993/- 06.06.2018 4 January, 2014 Rs.2,36,736/- 06.06.2018 Total Rs.30,23,843/- 2.3 On scrutiny of the aforesaid four refund claims, the original authority i.e., the Deputy Commissioner (CRS), GST Central Excise, Thane had found that all the said four refund claims are liable to be rejected on the basis of being hit by the limitation of time of one year as prescribed under the law. Therefore, he observed that without going into the merits of the refund claims, these are liable to be rejected. Accordingly, the original authority vide Order-in-Original dated 10.08.2018 had rejected the refund claims as time barred. 2.4 Feeling aggrieved with the order of the original authority, the appellants had preferred an appeal before the Commissioner (Appeals), Thane. In the appeal proceedings, learned Commissioner (Appeals) had partially allowed refund of service tax paid on the inputs services of Speed Post with consequential relief, while upholding the rejection of refund in respect of rest of the input services on the ground that the refund claims have been filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (C) of clause (l) of rule (2) of the CENVAT Credit Rules, 2004; (B) place of removal shall have the meaning assigned to it in section 4 of the Central Excise Act, 1944 (1 of 1944); (b) the rebate shall be claimed either on the basis of rates specified in the Schedule of rates annexed to this notification (hereinafter referred to as the Schedule), as per the procedure specified in paragraph 2 or on the basis of documents, as per the procedure specified in paragraph 3; (c) the rebate under the procedure specified in paragraph 3 shall not be claimed wherever the difference between the amount of rebate under the procedure specified in paragraph 2 and paragraph 3 is less than twenty per cent of the rebate available under the procedure specified in paragraph 2; (d) no CENVAT credit of service tax paid on the specified services used for export of goods has been taken under the CENVAT Credit Rules, 2004; (e) the rebate shall not be claimed by a unit or developer of a Special Economic Zone; (2) the rebate shall be claimed in the following manner, namely :- (a) manufacturer-exporter, who is registered as an assessee under the Central Excise Act, 1944 (1 of 1944) or the rules made thereun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this notification; (c) the manufacturer-exporter, who is registered as an assessee under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder, shall file a claim for rebate of service tax paid on the taxable service used for export of goods to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of manufacture in Form A-1; (d) the exporter who is not so registered under the provisions referred to in clause (c), shall before filing a claim for rebate of service tax, file a declaration in Form A-2, seeking allotment of service tax code, to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the registered office or the head office, as the case may be, of such exporter; (e) the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall, after due verification, allot a service tax code number to the exporter referred to in clause (d), within seven days from the date of receipt of the said Form A-2; (f) on obtaining the service tax code, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56) or the Income Tax Act, 1961 (43 of 1961), as the case may be; (j) where the rebate involved in a claim is less than rupees five hundred, the same shall not be allowed; (k) the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall, after satisfying himself,- (i) that the service tax rebate claim filed in Form A-1 is complete in every respect; (ii) that duly certified documents have been submitted evidencing the payment of service tax on the specified services ; (iii) that rebate has not been already received on the shipping bills or bills of export on the basis of procedure prescribed in paragraph 2; and (iv) that the rebate claimed is arithmetically accurate, refund the service tax paid on the specified service within a period of one month from the receipt of said claim : Provided that where the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, has reason to believe that the claim, or the enclosed documents are not in order or that there is a reason to deny such rebate, he may, after recording the reasons in writing, take action, in accordance with the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the manner specified therein. Further, in terms of Section 11 B of the Central Excise Act, 1944 as made applicable to matters relating to service tax under Section 83 of the Finance Act, 1994, any application for refund of duty/tax shall be filed before the expiry of one year from the relevant date prescribed therein. On the above basis and as per the condition 3(g) of the aforesaid Notification, the refund claim shall be filed within one year from the date of export of the goods for which such input services were used. 8. In the impugned order, the learned Commissioner (Appeals) had examined this aspect of filing of refund claim by the appellants, whether the same were filed within the prescribed time of one year. The findings in this regard by him as recorded in paragraphs 9 and 10 are extracted and given below: 8. .. Therefore, in view of the said judgment, I hold that the amount paid as service tax towards the services extended by the Department of pot is to be treated as 'deposit' only and not as a tax' and hence, it is not under the restrain of Section 11B of the Central Excise Act, 1944 which stipulates a time limit of one year to seek a refund of duty or ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Hon ble Supreme Court may hold, in the case of some other assessee that the levy of that kind is not exigible in law. In such cases, if he files the refund claim, then that is the third category of refund claim. In the first category, the provisions relevant to a particular taxing statute would not have any application, as the levy itself is held to be unconstitutional and the general law relating to refund including time limit etc. would apply. In the second category, the refund of duty/tax would be governed solely by the provisions of the specific taxation statute. In the third category of case, it would depend on the facts of the case and the claimant of refund could file a writ petition or a suit within three years of such discovery of mistake of law . 9.2 In the present factual matrix of the case, I find that the case in hand does not relate to the first category of unconstitutional levy or the third category of refund on the basis of the judgement delivered by the Hon ble Supreme Court. It squarely falls under the second category of duty/tax paid by the claimant which could at the most be treated as illegal levy. However, even in such cases, the legal provisions of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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