Custom, Excise & Service Tax Tribunal
M/S Jodhpur Vidyut Vitran Nigam Ltd vs C.C.E, Jaipur I on 25 November, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066
Date of Hearing: 23.09.2015
Date of pronouncement: 25.11.2016
For Approval & Signature :
Honble Ms. Archana Wadhwa, Member (Judical)
Honble Mr. V. Padmanabhan, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Appeal No. ST/947/2010-CU[DB]
[Arising out of Order-in-Appeal No.123(DK)ST/JPR-I/2010, dated 31.03.2010 passed by the C.C.E.(Appeals),Indore-I]
M/s Jodhpur Vidyut Vitran Nigam ltd Appellant
Vs.
C.C.E, Jaipur I Respondent
Appearance Sh. Praful Kumar Mehta - For Appellant Sh. Ranjan Khanna,DR - For Respondent CORAM:Honble Ms. Archana Wadwa, Member (Judicial) Honble Mr. V. Padmanabhan, Member (Technical) Final Order No. 55305, dated 25.11.2016 Per Mr. V. Padmanabhan:
1. The present appeal has been filed against the Order-In-Appeal dated 31.3.2010 passed by the Commissioner (Appeals), Jaipur. The dispute is with reference to refund claim by the appellant of the service tax paid by them to M/s Aditi Computers who were engaged by the appellant for carrying out activities such as billing etc of the electricity distributed by the appellant to consumers. The service tax had been paid by the latter and reimbursed by the appellant under Business Auxiliary Service (BAS). The refund was claimed before the original authority arguing that no service tax is payable on this activity by M/s Aditi Computers. It is claimed that the activities of billing done by M/s Aditi will not be liable to payment of service tax under BAS since these activities are in the form of Information Technology Services(ITS). The refund claim stands rejected both on merits as well as on the ground of time bar vide the order of the original authority dated 6.8.2009. The rejection of refund claim was challenged before the Commissioner (Appeals), but the appellant did not get any relief. Hence, the present appeal.
2. Heard Shri Praful kumar Mehta, ld. advocate for the appellant as well as Shri Ranjan Khanna ld. Departmental Representative for the Revenue.
3. The ld. advocate for the appellant submitted that:-
i) No service tax is payable on the activities of billing carried out by M/s. Aditi Computers since this activity is in the nature of Information Technology Services. Such services were excluded from the definition of BAS till 01.05.2006. The service tax has been paid by M/s. Aditi Computers. During the period prior to 01.05.2006, they were not required to pay the same. Hence the appellant, who has reimbursed service tax to M/s Aditi Computers, is entitled to refund on merits.
ii) The refund of service tax paid should be sanctioned without reference to the time limits specified under Section 11B of the Act inasmuch as the tax stands paid by mistake.
2. The ld. Departmental Representative reiterated the orders passed by the original adjudicating authority. He argued that payment of any refund is subjected to the provisions of Section 11B of the Act, which means that claim is required to be filed within a period of one year from the relevant date, which in the present case is the date of the payment of service tax by M/s. Aditi Computers. Since the claim has not be filed within the period of one year, the same has been rejected as time barred by the original adjudicating authority.
3. We have heard both sides and perused the records. We find that the appeal can be decided on the point by time bar. Hence, we are not discussing the merits of present refund claim. The service tax stands paid during the period August, 2004 to April, 2006 and the refund has been filed on 22.11.2007. The claim has been held to the time bared under section 11B of the Act, as it has been filed beyond the time limit of one year from the date of payment of service tax by M/s. Aditi Computers. The argument raised by the appellant is that the one year time limit will not be applicable to the present refund claim, since the service tax has been paid on a service which is not taxable. They have also relied upon the case laws in which it has been held that Section 11B of the Act is not applicable where tax is paid on an activity which is not chargeable to tax at all. They cited the following case laws:-
i) Geojit BNP Paribas Financial Services Ltd. Vs. CST, Kochi [W.P.(C) No. 18126/2015, dated 06.07.2015 (M)] (Kerala High Court).
ii) M/s. Natraj & Venkat Associates Vs. Asst. Commissioner [W.P. dated 20.10.2009](Madras High Court)
6. It is not disputed that the service tax has been paid by M/s Aditi Computers under the category of BAS for the activity of billing carried out on the behalf of the appellant. Such service tax amount has also been reimbursed by the appellant to M/s Aditi Computers. There is no doubt that the service tax paid is on account of service rendered. Refund of any amount paid as tax is necessarily to be governed by Section 11B of the Central Excise Act, 1944 which has been made applicable for purposes of refund of service tax by Section 83 of the Finance Act 1994. Consequently, refund of any amount of service tax has to satisfy the provisions of Section 11B of the Act. This section requires refund claim to be filed within a period of one year from the relevant date, which in this case is the date of payment of service tax. The claim of the appellant that this should be taken as the date of payment of service tax M/s. Aditi Computers has no basis and has to be rejected. Since, the refund claim has not been filed within the time limit prescribed under Section 11B, the claim has been rightly rejected by the authorities below in the light of case laws cited by the appellant. In the case of Geojit BNP Paribas Financial Services Ltd. Vs. CST, Kochi (supra), Honble High Court of Kerala has held that time limit will not be applicable for refund of tax where no tax was required to pay. However, such decision has been delivered by the Honble High Court in exercise of its Writ jurisdiction and cannot be held to be applicable as Tribunal is a creature of the Statute and hence cannot travel beyond it.
7. In line with above discussions, the impugned order is upheld and the appeal is rejected.
(Pronounced in the open court on 25.11.2016) (Archana Wadhwa) Member (Judicial) (V.Padmanabhan) Member (Technical) SSK -2-