ST - In every case of refund amount is refundable only when it is not payable - if it is accepted that every such amount shall be treated as payment without authority of law, then Section 11Bof CEA, 1944 will stand redundant: CESTAT
By TIOL News Service
MUMBAI, MAY 09, 2016: THE appellant filed refund claim of Rs.3,62,149/- on 23.4.2010 in respect of the service tax paid during the period April to September 2009.
The adjudicating authority rejected the refund claim on the ground of time bar and this order was upheld by the Commissioner (A).
Before the CESTAT the appellant submitted that as there was no levy of service tax on the output service provided by them, the amount paid was without authority of law and, therefore, for the purpose of refund, limitation as provided u/s 11B of the CEA, 1944 is not applicable. Reliance is placed on the decisions in KVR Construction - 2010-TIOL-68-HC-KAR-ST, Geojit BNP Paribas Financial Services Ltd. - 2015-TIOL-1602-HC-KERALA-ST, Hind Agro Industries Limited - 2007-TIOL-811-HC-DEL-CUS, Hexacom (I) Ltd. - 2003-TIOL-263-CESTAT-DEL, Jyotsana D. Patel - 2014-TIOL-2048-CESTAT-MUM, Indian Ispat Works (P) Ltd. - 2006-TIOL-425-CESTAT-DEL, Kalpataru Power Transmission Ltd. - 2016-TIOL-47-CESTAT-AHM, Jubiliant Enterprises P. Ltd. - 2014-TIOL-702-CESTAT-MUM, Madhvi Procon Pvt. Limited - 2015-TIOL-87-CESTAT-AHM.
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 and, therefore, refund of the said amount shall be governed by Section 11B and there is no other provision for refund. Case laws cited are Doaba Cooperative Sugar Mills - 2002-TIOL-426-SC-CX, Miles India Limited - 2002-TIOL-501-SC-CUS, Anam Electrical Manufacturing Co. - 2002-TIOL-650-SC-CUS, Andrews Telecommunications India P. Ltd. - 2012-TIOL-1137-CESTAT-MUM, MGM International Exports Ltd. - 2010-TIOL-979-CESTAT-MAD, M.C.I. Leasing (P) Ltd. - 2012-TIOL-54-HC-KAR-ST.
The Bench while distinguishing the case laws cited by the appellant observed -
++ Appellant have admittedly paid the service tax on Business Auxiliary Service even though such service was not leviable to service tax. However for the purpose of claiming refund of such amount of service tax, which was paid by the appellant, in the Central Excise Act Section 11B is only provision which deals with refund of any amount refundable to any person. Section 11B is applicable in the case of service tax matter by virtue of Section 83 of the Finance Act 1994. In my view, since the amount claiming 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.
++ In every case of refund the amount is refundable only where it is not payable and accordingly every such amount shall be treated as payment without authority of law, if this 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 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, the provision if any applies for refund of such duty is only provided under Section 11B and there is no any other provision. Therefore in my view, any amount which is to be refunded shall be refunded in accordance with Section 11B which include the condition of time limitation.
++ I am of the view that since refund of any amount is covered by Section 11B and there is no other provision, this Tribunal being a creature under the Central Excise/Customs Act cannot go beyond the statute and therefore cannot relax the time limitation provided under the statute.
Holding that the refund claim being filed after one year is hit by limitation and, therefore, correctly rejected by the lower authority, the appeal was dismissed.
(See 2016-TIOL-1104-CESTAT-MUM)
