2019 (1) TMI 721 – CESTAT MUMBAI – TMI – Refund of service tax – service provided by the club to its members – principles of mutuality – time limit prescribed under Section 11B of the Central Excise Act, 1944 – Held that:- It is an admitted fact on record that the refund application was filed by the appellant beyond the statutory time limitation prescribed under the statute. Therefore, the refund sanctioning authority adjudicating the refund issue under the statute has no option or scope to take a contrary view, than the position prescribed in the statute, to decide the issue differently. In other words, when the wordings of Section 11B are clear and unambiguous, different interpretations cannot be placed by the authorities functioning under the statute and they are bound to obey the dictates/provisions contained therein.
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In view of the above settled principles of law and in view of the fact that the refund applications were filed and decided under Section 11B ibid, the time lim
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ub or Association Service defined under Section 65(25a) of the Finance Act, 1994. The appellant is registered with the service tax department for providing of such taxable service. During the disputed period 2005-06 to 2014-15, the appellant had deposited the service tax amount in respect of such taxable service on different dates (1st and last of days of such deposits being 22.10.2009 and 30.04.2014 respectively). The appellant had filed the refund application before the Jurisdictional Service Tax authorities on 19.09.2016 on the ground that the service provided by the club to its members cannot be considered as taxable service by one legal entity to another and hence, not liable to service tax, on the principles of mutuality. The refund application filed by the appellant was rejected by the original authority on the ground that the same was filed beyond the prescribed time limit provided under Section 11B of the Central Excise Act, 1944 made applicable to service tax matters under Se
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and High Court in the case of Ranchi Club Ltd.[ 2012 (26) STR 401 (Jhar.)], the limitation prescribed under Section 11B of the Central Excise Act, 1944 does not apply and in such cases, the general rule of limitation prescribed under the Limitation Act, 1963 alone will be applicable. Thus, he submitted that the refund claim having been filed within the limitation period prescribed under the Limitation Act, 1963, the benefit cannot be denied on the ground of limitation. To support such stand, the learned Advocate has relied on the judgment of Hon ble Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India – 1997 (89) ELT 247 (SC) and the judgment of the Hon ble Bombay High Court in the case of Parijat Construction v. Commissioner of Central Excise, Nashik – 2018 (359) ELT 113 (Bom.). 4. On the other hand, the learned D.R. appearing for the Revenue reiterated the findings recorded in the impugned order and further submitted that since the appellant had filed the refund ap
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on filed by the appellant cannot be governed under Section 11B of the Act, and accordingly, rejection of the same by the lower authorities is proper and justified. Learned D.R. has also relied on the decision of the Larger Bench of this Tribunal in the case of Veer Overseas Ltd. v. Commissioner of Central Excise, Panchkula – 2018-TIOL-1432-CESTAT-CHD-LB to support the case of Revenue for rejection of refund application. 5. Heard both sides and perused the records, including the written submissions filed by both sides. 6. The facts are not under dispute that the appellant had filed refund applications on 19.08.2016, claiming refund of service tax paid by it on different occasions, ranging from 22.09.2009 to 30.04.2014; that the said applications were filed under Section 11B of the Central Excise Act, 1944 made applicable to the service tax matters vide Section 83 of the Finance Act, 1994; and that the refund sanctioning authority had adjudicated the refund applications under the said st
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and unambiguous, different interpretations cannot be placed by the authorities functioning under the statute and they are bound to obey the dictates/provisions contained therein. In this context, the Hon ble Supreme Court in the case of Doaba Co-operative Sugar Mills (supra) have held that if the proceedings have been initiated under the Central Excise Act by the department, the provisions of limitation prescribed in such Act alone will prevail with regard to applicability of the time limitation for filing the refund claim. Further, the Hon ble Supreme Court in the case of Anam Electrical Manufacturing (supra) have also held that the period prescribed by the Central Excise Act / Customs Act for filing of refund application in the case of illegal levy cannot be extended by any authority or Court. With regard to the issue, whether the jurisdictional authorities can entertain the refund application filed beyond the statutory prescribed time limit, the Hon ble Supreme Court in the case of
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unconstitutional, refund of tax under such statute will be outside the scope and purview of such enactment and under such circumstances, refund can be claimed by way of a suit or by way of a writ petition. The Hon'ble Apex Court have ruled that where the tax levy is struck down as unconstitutional for transgressing the constitutional limitations, a refund claim in such a situation, cannot be governed under such taxing statute; and such claim is maintainable both by virtue of the declaration contained in Article 265 of the Constitution of India and also by virtue of Section 72 of the Contract Act. It was further held that in such cases, period of limitation would be calculated as per the provisions contained in clause (c) of sub-section (1) of Section 17 of the Limitation Act, 1963. In the case in hand, since the refund applications were filed by the appellant under Section 11B ibid and entertained by the authorities under the said provisions, as per the ratio laid down by the Hon b
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