2019 (3) TMI 306 – CESTAT ALLAHABAD – TMI – Refund of service tax paid – time limitation – Revenue entertained a view that the said refund claim stands filed by them after the prescribed period of one year, was hit by limitation and as such was not to be sanctioned – Section 11B of the Central Excise Act, 1994 – Held that:- 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.
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The law on the issue is well settled. Each and every 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
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As per the facts on record, the appellant filed a refund claim of ₹ 23,36,577/- on the ground that project for setting up of sewage treatment plant under contract for Haryana Development Authority was exempted from Service Tax under Notification No. 25/2012-ST dated 20/06/2012 but on account of oversight, they kept on paying Service Tax. The said Service Tax was paid by them partly through Cenvat Credit and partly in cash, during the period 05/06/2013 and 06/07/2013. The refund claim was filed by them, vide the application dated 16/01/2015. 3. Revenue entertained a view that the said refund claim stands filed by them after the prescribed period of one year, was hit by limitation and as such was not to be sanctioned. Accordingly, a Show Cause Notice dated 18/08/2015 was issued proposing rejection of the said refund claim. 4. During the course of adjudication, the appellant did not contest the date of payment of Service Tax or the date of filing of refund claim. Their only content
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hs 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., 1988 (37) ELT 478 (SC), involving a similar issue of refund claim of duty, wherein it has been held that …..in making claims for refund before the departmental authority, an assessed is bound within four comers of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed there under must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. Further, a similar view was taken by the Hon ble Supreme Court in respect of the period of limitation prescribed under Section 27 of the Customs Act in the case of Miles India Ltd. Vs. Asst. Collector of Customs, 1987 (3
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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 Service – Plea of appellant that limitation period not applicable in such cases as tax cannot be retained without authority of law, not acceptable because in that case statutory provisions prescribing limitation period would become redundant – Every case of refund is for tax/duty paid but not payable – There being no other provision of refund, time limit prescribed in Section 11B of Central Excise Act, 1944 has to be mandatorily followed – Tribunal functioning under Central Excise Act/Customs Act, cannot go beyond the statue and relax time limitation prescribed as per law – refund claim hit by limitation and correctly rejected by adjudicating authorities – Impugned order upheld – Section 11B of Central Excise Act, 1944 as applicable to Service Tax vide Section 83 of Fina
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