Custom, Excise & Service Tax Tribunal
Sgr Infratech Ltd vs Cce Nagpur on 1 May, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. ST/195/07 Mum
(Arising out of Order-in-Appeal No. SVS/325/NGP-I-ST/2007 dated 20.09.2007 passed by the Commissioner of Central Excise & Customs (Appeals), Nagpur.)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
SGR Infratech Ltd.
:
Appellant
Versus
CCE Nagpur
Respondent
Appearance Shri Mayur Shroff, Advocate For appellants Shri Rakesh Goyal, Addl. Commissioner (A.R.) For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 01.05.2014 Date of Decision : 01.05.2014 ORDER NO.
Per Ashok Jindal The appellant is in appeal against the impugned order wherein the refund claim has been rejected as time barred as prescribed under Section 11B of the Central Excise Act, 1944.
2. Brief facts of the case are that the appellant had entered into a contract with the Nagpur Municipal Corporation for maintenance of street light in the Nagpur city. The activity undertaken by the appellant was of maintenance and repairs of immovable property like street light, electric installation etc. As the activity of maintenance and repairs of goods were made taxable on 01.07.2003. The appellant was under the impression that they are required to pay service tax, they kept paying the service tax till 15.06.2005. Later-on, when they realized that as the street lights are immovable property and they are not required to pay service tax, they filed a refund claim of the service tax erroneously paid by them which was not payable at all. The refund claim was rejected as time barred as prescribed under Section 11B of the Central Excise Act, 1944. Aggrieved by the said order, the appellant is before me.
3. Heard both sides.
4. The learned Counsel appearing on behalf of the appellant submits that in this case provisions of Section 11B of the Central Excise Act, 1944 are not applicable as during the impugned period the appellant was not required to pay the service tax at all. Therefore, whatever service tax paid by them is without the authority of law. In that case, provisions of Section 11B of the Central Excise Act, 1944 are not applicable. To support this contention, he placed reliance on the decision of CCE Bangalore vs. KVR Construction 2012 (26) STR 195 (Kar.) and Hind Agro Industries Ltd. v. CC 2008 (221) ELT 336 (Del.).
5. On the other hand, the learned A.R. appearing for the Revenue opposes the contentions of the learned Counsel and supported the impugned order. He submits that all the refund claims are covered by the provisions of Section 11B of the Central Excise Act, 1944 as held the Honble Apex Court in the case of Assistan Collr. Of Cus. V. Anam Electrical Manufacturing Co. 1997 (90) ELT 260 (S.C.). He further submits that as per the decision of the Honble Apex Court in the case of Miles India Ltd. vs. Asst. Collector of Customs 1987 (30) ELT 641 (S.C.), all the refund claims are to be filed within the statutory period of limitation. He further submits that even if in this case, it is to be held that the refund claim has to be entertained, that is beyond the jurisdiction of this Tribunal and that can be dealt with only by the Honble High Courts and the Apex Court. Therefore, he prays that the appeal be dismissed.
6. Considered the submissions made by both the sides and perused the records.
7. In this case, the first issue to be decided is whether the claim for refund of the service tax filed by the appellant was within the authority of law or not. This fact has not been disputed by the lower authorities and held that the service tax was not payable by the appellant during the impugned period. Therefore, the appellant is entitled for refund of whatever service tax paid by them. In the impugned order, it is held that the service tax paid by the appellant is not payable at the relevant time as there was no levy of service tax on the activity of the appellant. The case law relied upon by the learned A.R. in the case of Anam Electrical Manufacturing Co. (supra) has been dealt with by the Honble High Court of Delhi in the case of Hind Agro Industries Ltd. 2008 (221) ELT 336 (Del.) wherein the High Court has observed as under:-
13.?It is clear that in Mafatlal Industries the Honble Supreme Court had only talked of refund of duty payable within the meaning of either the Central Excises and Salt Act, 1944 (Excise Act) or the Customs Act, 1962, as the case may be. In other words when the Honble Supreme Court said that all claims for refund ought to be filed only in accordance with the Customs Act or Excise Act, it obviously did not include payment made under some enactment, which for some reason, had erroneously been made to the Customs authorities. Nowhere did Mafatlal Industries talk of a situation where the refund of a cess paid under the Cess Act, 1985 albeit erroneously, was required to be made under the Excise Act or the Customs Act and under no other enactment. Consequently, the observation in para 4 of the judgment of the Honble Supreme Court in Anam Electrical Manufacturing Co. has also to be understood in the same manner. Para 4 of the said judgment it has been explained that the rules pertaining to refund would not apply where refund is sought of a duty levied and recovered under an unconstitutional provision. It was explained that the period of limitation in such cases would be in terms of the law laid down in Mafatlal Industries. It is obvious that when the Honble Supreme Court talked of duty levied and recovered under an unconstitutional provision the reference was not to a duty of customs or excise. Therefore, to rely upon either Mafatlal Industries or Anam Electrical Manufacturing Co. to deny the claim of the Appellants in this case is entirely misconceived. The Honble Karnatka High Court in the case of KVR Construction (supra) has considered the decision of the Honble High Court of Delhi in the case of Hind Agro Industries Ltd. (supra) and arrived at a decision that where the service tax has been paid without any authority of law, in that case provisions of Section 11B of the Central Excise Act, 1944 are not applicable. Therefore, I hold that in this case the provisions of Section 11B of the Central Excise Act, 1944 are not applicable as the appellant has paid the service tax which was not payable during the relevant time. Further the arguments advanced by the learned A.R. that this Tribunal has not authority to sanction the refund claim, I find that as per Section 35B of the Central Excise Act, 1944, if any person aggrieved by the order of the Commissioner (Appeals) can file an appeal before this Tribunal. Obviously, the appellant before me is aggrieved by the order of the Commissioner (Appeals), therefore, the appeal is maintainable. I do not find any merit in the argument advanced by the learned A.R. In the nutshell the appeal is allowed. The adjudicating authority is directed to implement this order within thirty days of its communication.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk ??
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