Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/CASE LAW/2014-15/2317

Whether time limit of section 11B applicable for refund of service tax paid erroneously without authority of law?

Case:-SGR INFRATECH LTD Vs COMMISSIONER OF CENTRAL EXCISE, NAGPUR
 
Citation:-2014-TIOL-1702-CESTAT-MUM

Brief facts:-Brief facts of the case are that the appellant had entered into a contract with the Nagpur Municipal Corporation for maintenance of street light in the Nagpur City. The activity undertaken by the appellant was of maintenance and repairs of immovable property like street light, electric installation etc. As the activity of maintenance and repairs of goods were made taxable on 01.07.2003. The appellant was under the impression that they are required to pay service tax, they kept paying the service tax till 15.06.2005. Later-on, when they realized that as the street lights are immovable property and they are not required to pay service tax, they filed a refund claim of the service tax erroneously paid by them which was not payable at all. The refund claim was rejected as time barred as prescribed under Section 11B of the Central Excise Act, 1944. Aggrieved by the said order, the appellant is before the tribunal.
 
Appellant’s contentions:- The learned Counsel appearing on behalf of the appellant submits that in this case provisions of Section 11B of the Central Excise Act, 1944 are not applicable as during the impugned period the appellant was not required to pay the service tax at all. Therefore, whatever service tax paid by them is without the authority of law. In that case, provisions of Section 11B of the Central Excise Act, 1944 are not applicable. To support this contention, he placed reliance on the decision of CCE Bangalore Vs. KVR Construction - 2012 (26) STR 195 (Kar.)=2010-TIOL-89-HC-KAR-STand Hind Agro Industries Ltd. v. CC- 2008 (221) ELT 336 (Del) = 2007-TIOL-811-HC-DEL-CUS.
 
Respondent’s contentions:-The learned A.R. appearing for the Revenue opposes the contentions of the learned Counsel and supported the impugned order. He submits that all the refund claims are covered by the provisions of Section 11B of the Central Excise Act, 1944 as held by the Hon'ble Apex Court in the case of Assistant Collector Of Cus. V. Anam Electrical Manufacturing Co- 1997 (90) ELT 260 (S.C.) = 2002-TIOL-650-SC-CUS. He further submits that as per the decision of the Hon'ble Apex Court in the case of Miles India Ltd. vs. ASST. Collector of Customs - 1987 (30) ELT 641 (S.C.) = 2002-TIOL-501-SC-CUS, all refund claims are to be filed within the statutory period of limitation. He further submits that even if in this case, it is to be held that the refund claim has to be entertained, that is beyond the jurisdiction of this Tribunal and that can be dealt with only by the Hon'ble High Courts and the Apex Court. Therefore, he prays that the appeal be dismissed.
 
Reasoning of judgment:-In this case, the first issue to be decided is whether the claim for refund of the service tax filed by the appellant was within the authority of law or not. This fact has not been disputed by the lower authorities and held that the service tax was not payable by the appellant during the impugned period. Therefore, the appellant is entitled for refund of whatever service tax paid by them. In the impugned order, it is held that the service tax paid by the appellant is not payable at the relevant time as there was no levy of service tax on the activity of the appellant. The case law relied upon by the learned A.R. in the case of Anam Electrical Manufacturing Co. (supra) has been dealt with by the Hon'ble High Court of Delhi in the case of Hind Agro Industries Ltd. - 2008 (221) ELT 336 (Del.)wherein the High Court has observed as under:-
 
"13. It is clear that in Mafatlal Industries the Hon'ble Supreme Court had only talked of refund of duty payable within the meaning of either the Central Excises and Salt Act, 1944 ('Excise Act') or the Customs Act, 1962, as the case may be. In other words when the Hon'ble Supreme Court said that all claims for refund ought to be filed only in accordance with the Customs Act or Excise Act, it obviously did not include payment made under some enactment, which for some reason, had erroneously been made to the Customs authorities. Nowhere did Mafatlal Industries talk of a situation where the refund of a cess paid under the Cess Act, 1985 albeit erroneously, was required to be made under the Excise Act or the Customs Act and under no other enactment. Consequently, the observation in para 4 of the judgment of the Hon'ble Supreme Court in Anam Electrical Manufacturing Co. has also to be understood in the same manner. Para 4 of the said judgment it has been explained that the rules pertaining to refund would not apply where refund is sought of a 'duty levied and recovered under an unconstitutional provision.' It was explained that the period of limitation in such cases would be in terms of the law laid down in Mafatlal Industries. It is obvious that when the Hon'ble Supreme Court talked of 'duty levied and recovered under an unconstitutional provision' the reference was not to a duty of customs or excise. Therefore, to rely upon either Mafatlal Industries or Anam Electrical Manufacturing Co. to deny the claim of the Appellants in this case is entirely misconceived."
 
The tribunal has considered the decision of the Hon'ble High Court of Delhi in the case of Hind Agro Industries Ltd. (supra) and arrived at adecision that where the service tax has been paid without any authority of law, in that case provisions of Section 11B of the Central ExciseAct, 1944 are not applicable. Therefore, The Hon’ble Court held that in this case the provisions of Section 11B of the Central Excise Act, 1944 are notapplicable as the appellant has paid the service tax which was not payable during the relevant time. Further arguments advanced by thelearned A.R. that this Tribunal has not authority to sanction the refund claim, they find that as per Section 35B of the Central Excise Act, 1944, ifany person aggrieved by the order of the Commissioner (Appeals) can filed an appeal before this Tribunal. Obviously, the appellant beforethem is aggrieved by the order of the Commissioner (Appeals), therefore, the appeal is maintainable. They do not find any merit in the argumentadvanced by the learned A.R. In the nutshell the appeal is allowed. The adjudicating authority is directed to implement this order withinthirty days of its communication.
 
Decision:-Appeal allowed.

Comment:-The analogy of the case is that service tax is not payable by the appellant as there is no levy of service tax on the activity done by the appellant. Hence appellant is liable to claim the refund of the service tax paid. In this case, the provisions of Section 11B of the Central Excise Act, 1944 are notapplicable as the appellant has paid the service tax which was not payable during the relevant time. Accordingly, the amount claimed as refund is not service tax and so the time limit of section 11B is not applicable.
 
Prepared by:- Monika Tak
 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com