M/s Triveni Engineering & Industries Limited Versus Commissioner of Central Goods & Service Tax, Noida
Service Tax
2019 (3) TMI 306 – CESTAT ALLAHABAD – TMI
CESTAT ALLAHABAD – AT
Dated:- 14-2-2019
APPEAL No. ST/70098/2018-CU[DB] – FINAL ORDER NO. 70326/2019
Service Tax
Mrs. Archana Wadhwa, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical)
Request for Adjournment, for Appellant
Shri Gyanendra Kumar Tripathi, Deputy Commissioner (AR), for Respondent
ORDER
Per: Archana Wadhwa
After rejecting the request of adjournment, we proceed to decide the appeal itself in as much as, the disputed issue lies in a narrow compass. Accordingly, we have heard learned A.R. appearing for the Revenue and have gone through the impugned orders.
2. As per the facts on record, the appellant filed a refund claim of Rs. 23,36,577/- on the ground that project for setting up of sewage treatment plant under contract for Haryana Development Authority was exempted from Serv
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vide his impugned order rejected the refund claim. On appeal against the said order, Commissioner (Appeals) also upheld the same and hence the present appeal.
5. The only short issue required to be decided in the present appeal is, as to whether the limitation of one year would be applicable or not, as applicable in terms of provisions of Section 11B of the Central Excise Act, 1994, which has been made applicable to the Service Tax matters also by virtue of Section 18(3) of the Finance Act, 1994. The Commissioner (Appeals) has referred to various decisions of the Hon'ble Supreme Court laying down that the Authorities working under the Act are bound by the provisions of the Act and cannot go beyond the same. For better appreciation, we reproduce the relevant paragraphs from the impugned order of Commissioner (Appeals) is held as follows:-
In this regard, I place reliance on the Hon'ble Supreme Court's judgment in the case of CCE, Chandigarh Vs. Doaba Co-operative Sugar Mills Ltd., 198
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ment of which refund sought, same had to be done within one year of the payment – Claim for refund not having been made within the period prescribed under the Act, order of Tribunal held to be in accordance with law – Sections 11B and 35G of Central Excise Act, 1944 – Section 83 of Finance Act, 1944.” Thus, as per the above judgments of the Hon'ble Supreme Court and the Hon'ble High Court, it has been clearly laid down that with regard to disposal of refund claim of duty/tax, the departmental authorities cannot go beyond the statutory provisions and the period of limitation as prescribed under Section 11B of the Central Excise Act, 1944 and Section 27 of the Customs Act have to be strictly followed by them. In this regard, I also place reliance on the Hon'ble CESTAT's judgment in the case of Benzy Tours & Travels (P) Ltd. Vs. Commissioner of ST, 2016 (43) STR 425 (Tri. – Mum.), wherein it has been held that “Refund – Limitation – Service Tax paid erroneously on Business Auxiliary Servi
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refund claim of tax/duty, whether paid erroneously or not, is required to be governed by the provisions of the Act. In fact, every refund claim arises on account of the fact that the same was not required to be paid. As such, if the refunds are to be allowed on the ground that they were not required to be paid, without adhering to the limitation provisions, then each and every refund claim would become payable and the limitation provisions, as enacted in terms of the provisions of Section 11B of the Central Excise Act, 1944 would become redundant and infructuous.
At this stage, we may refer to the Hon'ble Supreme Court decision in the case of Porcelain Electric Mfg. Co. Versus Collector of Central Excise, New Delhi reported as 1998 (98) ELT 583 (S.C.), wherein it was observed that the Authorities working under the Act are bound by the provisions of the Act and are required to scrutinize the refund claims accordingly. The constitutional jurisdiction exercised by the High Courts for gra
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