By TIOL News Service

MUMBAI, JUNE 10, 2016: THE appellants are registered as a service provider under the category of Commercial or Industrial Construction Services. The appellants filed refund claims in respect of service tax paid on the ground that they have provided service to Mumbai Education Trust (MET), a non-profit making organization engaged in education, and that as per departmental clarification issued under para 13.2 of CBEC Circular No. 80/10/2004-ST dated 17/9/2004, construction services provided for use of organizations or institutions being established solely for educational, religious, charitable, health, sanitation or philanthropic purposes and not for the purpose of profit, are exempted.

The Asstt. Commissioner rejected the refund claim of Rs. 11,31,144/- and Rs. 9,73,292/- respectively as being time barred and an amount of Rs. 81,567/- [for August 2007] was also held not admissible on the ground that Board Circular No. 80/10/2004-ST was withdrawn vide Circular No. 96/7/2007-ST dated 23/8/2007.

Aggrieved by both the Orders-in-Originals, appellants filed appeals before the Commissioner (Appeals) who partly allowed the appeal to the extent of Rs. 81,567/- and Rs. 73,330/- and for remaining amounts i.e. 10,49,568/- and Rs. 8,99,962/- the Orders-in-Original were upheld.

The appellant is before the CESTAT.

It is submitted that since there was no levy of service tax, the amount paid by them was without authority of law. Therefore, for the purpose of refund of said amount, limitation as provided under Section 11B of the CEA, 1944 is not applicable. Reliance is placed on the decisions in Geojit BNP Paribas Financial Services Ltd - 2015-TIOL-1602-HC-KERALA-ST, KVR Construction - 2010-TIOL-68-HC-KAR-ST, C.K.P Mandal - 2015-TIOL-98-CESTAT-MUM, Natraj and Venkat Associates - 2010-TIOL-67-HC-MAD-ST, Shankar Ramchandra Auctioneers - 2010-TIOL-632-CESTAT-MUM, Jubilant Enterprises P. Ltd - 2014-TIOL-702-CESTAT-MUM.

The AR submitted that there is no dispute that even though the service provided by the appellant is not liable to service tax but the amount paid by the appellant is service tax only and not on any other account, therefore, refund of the said amount shall be governed by Section 11B and there is no other provision for refund;that section 11B prescribes time limit of one year for filing the refund claim that is to be mandatorily complied with by the assessee claiming refund. Reliance is placed on the following judgments viz. Doaba Co-operative Sugar Mills - 2002-TIOL-426-SC-CX, Miles India Limited - 2002-TIOL-501-SC-CUS, Anam Electrical Manufacturing Co. - 2002-TIOL-650-SC-CUS, Andrew Telecom (I) Pvt. Ltd. - 2014-TIOL-497-HC-MUM-ST, Kirloskar Pneumatic Company - 2002-TIOL-60-SC-CUS.

The Bench inter alia observed -

+ For the purpose of claiming refund of such amount of service tax which was paid by the appellant, under the Central Excise Act, Section 11B is the only provision which deals with refund of any amount refundable to any person.

+ In our view, since the amount claimed for refund by the appellant can be refunded only under Section 11B, the limitation provided in the said Section shall also apply for sanction of refund. There is no other provision for refund of Service Tax/Excise duty except Section 11B of the Act, therefore, limitation is applicable.

To the submission by the appellant that since the service is not a taxable service, the payment made is without authority of law and hence Section 11B is not applicable for refund of such amount, the Bench noted -

++ We are of the view that in every case of refund the amount became refundable only where it is not payable as per law and accordingly every such amount shall be treated as payment without authority of law.

++ If this view is accepted then Section 11B will stand redundant, as in every refund matter Section 11B shall not apply for the reason that any amount which is refundable is neither the service tax nor excise duty and all such amount shall be deemed to be paid without authority of law.

++ Therefore in my considered view, at the time of payment the assessee pays the amount under a particular head such as service tax, excise duty etc. and when subsequently it is found that this amount is not payable, the same amount stand refundable to the assessee and such refund is treated as refund of service tax/duty only.

++ Therefore in our view, any amount which is to be refunded shall be refunded in accordance with Section 11B which includes the condition of time limitation.

++ Since refund of any amount is governed by Section 11B and there being no other provision, this Tribunal being a creature under the Central Excise/Custom Act cannot go beyond the statute and, therefore, cannot relax the time limitation provided under the statute.

Holding that the refund claims being filed after one year are hit by limitation and, therefore, correctly rejected by the lower authority, the impugned orders were upheld and the appeals were dismissed.

(See 2016-TIOL-1391-CESTAT-MUM)