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ST - Excess amount paid by appellant by way of service tax can be refunded subject to provisions of Sec 11B only - Tribunal is a creature of statute and needs to function within its four walls: CESTAT

By TIOL News Service

NEW DELHI, FEB 09, 2017: WITH effect from 01.05.2006 a new service of 'sale of space or time for advertisement services' was introduced in the statute book and appellant started payment of service tax under the new category.

However, on actual realization of the value of services in January 2007, the service tax pertaining to the period May to December 2006 was paid once again. Net result was that the appellant ended up paying towards the service tax, amount of Rs.14,92,703/- twice.

Therefore, the appellant filed a refund claim on 25.07.2007.

The original authority as well as the Commissioner (A) held that a part of the refund claim amounting to Rs.4,23,454/- was time barred inasmuch as the refund claim has been filed beyond the period of one year specified u/s 11B of CEA, 1944.

Aggrieved, the appellant is before the CESTAT and submits that the amount should be refunded to them without considering time bar since the amount has been paid as service tax when it was not required to have been paid.

Support is inter alia drawn from the decisions in UOI Vs. ITC Ltd. 1993 (67) ELT 3 (SC), Kalpataru Power Transmission Ltd - 2016-TIOL-47-CESTAT-AHM and Hexacom (I) Ltd. - 2003-TIOL-263-CESTAT-DEL.

The DR reiterated the impugned order and emphasized that any amount, before being refunded, has to satisfy the time limit specified under section 11B.

The Bench observed –

+ There is no doubt that the portion of the refund claim rejected to the extent of Rs.4,23,454/- pertains to the excess amount of service tax paid more than 1 year prior to filing of refund claim. Section 11B of the Central Excise Act, which has been made applicable to refund of service tax clearly states that the refund claim needs to be filed within a period of one year from the relevant date.

+ The excess amount has been paid by the appellant by way of service tax, and hence can be refunded only subject to provision of Section 11B which governs ground of refund of any service tax in this statute.

+ In the matter of reliance placed on the apex court decision, the CESTAT observed that whereas the Supreme Court as well as the High Courts are vested with special powers under the Constitution, the Tribunal is a creature of the statute and needs to function within the four walls of the statute.

Noting that the Bench is unable to extend the benefit of such decision of the Apex Court, the Bench held that the refund filed beyond the time limit of one year has been rightly rejected as time barred by the lower authorities.

The appeal was dismissed.

(See 2017-TIOL-370-CESTAT-DEL)


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