M/s Standard Auto Agencies Versus CGST & CE, Bhopal
Service Tax
2018 (7) TMI 1378 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 15-6-2018
Appeal No. ST/50422/2018-SM – A/52465/2018-SM[BR]
Service Tax
Mrs. Archana Wadhwa, Member (Judicial)
Shri Rakesh Khandelwal, C.A. – for the appellant
Shri P. Junega, DR – for the respondent
ORDER
Per Archana Wadhwa:
After hearing both the sides duly represented by Shri Rakesh Khandelwal, ld. Counsel appearing for the appellant and Shri P. Junega, ld. AR appearing for the respondent, I find that the appellant, who is engaged in providing business auxiliary services, was paying service tax on the same during the year 2012-2013 to 2014-2015. Subsequently, VAT department demanded VAT on the same by treating the same as a part of the sale price of motor vehicles. The appellant contested the payment of VAT but simultaneously filed a refund claim of service tax before the Service Tax jurisdictional Central Excise office
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applicable to service tax matter. The said section provides for time limit within which a refund claim has to be filed. The said section nowhere stipulates that time taken by the court will be excluded. In fact Section 11B(3) provides that all cases would be governed by this section which read as under:
(3) Notwithstanding anything to be contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section(2)
10 Hon'ble Supreme Court in the case of Mafatlal Industries Limited has held that all claim for refund are to be preferred and adjudicated upon under Section 11B of the Act. The Limitation Act has no applicability in the issue at hand and the same shall be governed by the section 11B of the Act. Reliance is placed on the Apex Court's decision in the case of Porcelain Electrica
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exclusive levies. If VAT is paid on anything, the same would not attract service tax. However, in the present case, it is seen that the appellants have not paid VAT on the logistic charges and it is only on the basis of a proposal by the VAT Department to levy VAT on logistic charges, they have approached the Service Tax Department for refund of the service tax.
In any case and any view of the matter, the refund claims stands filed after a period of one year from the relevant date in terms of Section 11B of the Act. As rightly observed by Commissioner (Appeals), the Apex Court's decisions, referred in the said order are fully applicable to the facts of the present case. All the refund claims are governed by the provisions of Section 11B and the time limit prescribed therein is required to be adhered to by the Revenue authorities. Tribunal being a creature of the law and working under the Act, is bound by the provisions of the Act and has no extraordinary jurisdiction to dilute the lim
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