Custom, Excise & Service Tax Tribunal
Benzy Tours & Travels Pvt. Ltd vs Commissioner Of Service Tax, Mumbai-I on 11 March, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. ST/86430/15 (Arising out of Order-in-Appeal No. SR/09/ST-1/2015-ST passed by the Commissioner of Service Tax (Appeals) Mumbai-I ) For approval and signature: Honble Shri Ramesh Nair, 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 : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
======================================================
Benzy Tours & Travels Pvt. Ltd.
:
Appellant
VS
Commissioner of Service Tax, Mumbai-I
:
Respondent
Appearance
Shri Vinod Awtani, C.A. for Appellant
Ms. P. Vinitha Sekhar Dy. Commr. (A.R) for respondent
CORAM:
Honble Shri Ramesh Nair, Member (Judicial)
Date of hearing : 11/03/2016
Date of decision: 11/03/2016
ORDER NO.
The appeal is directed against Order-in-Appeal No. SR/09/ST-I/2015 dt. 30.3.2015 passed by Commissioner of Central Excise and Service Tax (Appeals) Mumbai Zone-I, whereby Order-in-Original No.DMD/R-192/2011 dt. 28.6.2011, was upheld by rejecting the appeal filed by the appellant.
2. The fact of the case is that the appellant have filed refund claim of Rs. 3,62,149/- on 23.4.2010 in respect of service tax paid on the output service on the ground that they have provided Business Auxiliary Services (Visa Services) which is out of scope of service tax applicability. Since the service tax was paid during the period April 2009 to September 2009 and refund claim was filed on 23.4.2010 show cause notice was issued proposing rejection of refund claim on the ground of time bar as per Section 11B of the Central Excise Act ,1944 as the refund claim was filed after one year from the relevant date. The adjudicating authority vide Order-in-Original rejected the refund claim being time bar under the provisions of Section 11B of Central Excise Act. Aggrieved by the adjudication order the appellant filed appeal before the Commissioner (Appeals), who upholding the original order rejected the appeal of the appellant. Therefore the appellant is before me.
3. Shri Vinod Awtani, Ld. Chartered Accountant appearing on behalf of the appellant submits that the service tax levy was not on the output service provided by them. However they paid the service tax. Since there was no levy of service tax the amount paid by them was without authority of law. Therefore for the purpose of refund of the said amount limitation as provided under Section 11B of the Central Excise Act, 1944 is not applicable. In support of his submission he placed reliance on the following judgments:
(i) Commr. of C.Ex., (Appeals) Vs. Bangalore Vs. KVR Construction 2012 (26) S.T.R. 195 (Kar.)
(ii) Geojit BNP Paribas Financial Services Ltd. Vs. C.C.E., Cus. & S.T., Kochi 2015 (39) S.T.R. 706 (Ker.)
(iii) Commissioner of C.Ex., Bangalore-III Vs. Motorola India Pvt. Ltd.
2006 (206) E.L.T. 90 (Kar.)
(iv) Hind Agro Industries Limited Vs. Commissioner of Customs 2008 (221) E.L.T. 336 (Del.)
(v) Hexacom (I) Ltd. Vs. Commissioner of Central Excise, Jaipur 2003 (156) E.L.T. 357 (Tri. Del.)
(vi) Jyotsana D. Patel Vs. Commissioner of C.Ex. Nagpur 2014 (35) S..T.R. 77 (Tri.-Mumbai)
(vii) Commissioner of C.Ex. Raipur Vs. Indian Ispat Works (P) Ltd.
2006 (3) S.T.R. 161 (Tri.-Del.)
(viii) M/s. Kalpataru Power Transmission Ltd. Vs. Commissioner of Central Excise and Service Tax, Ahmedabad 2016-TIOL-47-CESTAT-AHM
(ix) Jubiliant Enterprises P. Ltd. Vs. Commissioner of C. Ex. Mumbai 2014 (35) S.T.R. 430 (Tri.-Mumbai)
(x) C.C.E & S.T. Bhavnagar Vs. Madhvi Procon Pvt. Limited 2015 (38) S.T.R. 74 (Tri.-Ahmd.)
4. On the other hand, Ms. P. Vinitha Sekhar, Ld. Deputy Commissioner (A.R.) appearing on behalf of the Revenue reiterates the finding of the impugned order. She submits that though the Ld. Counsel has relied upon certain judgments, the Honble Supreme Court in various judgments categorically held that in case of refund of any amount it is governed by Section 11B of the Central Excise Act only and the statutory time limit provided under Section 11B shall be applicable for refund of any amount. She submits that there is no dispute that even though the service provided by the appellant is not liable to service tax but the amount paid by the appellant is service tax only and not on any other account. Therefore refund of the said amount shall be governed by Section 11B and there is no other provision for refund. Section 11B prescribed time limit of one year for filing the refund claim that is to be mandatory complied with by the assessee claiming refund. She placed reliance on the following judgments.
(i) Collector of C.E., Chandigarh Vs. Doaba Co-operative Sugar Mills 1988 (37) E.L.T. 478 (S.C.)
(ii) Miles India Limited Vs. Assistant Collector of Customs 1987 (30) E.L.T. 641 (S.C.)
(iii) Assistant Collector of Customs Vs. Anam Electrical Manufacturing Co.
1997 (90) ELT 260 (S.C.)
(iv) Bajaj Foods Ltd. V. Commissioner 2015 (320) E.L.T A197(Guj.)
(v) Andrew Telecom (I) Pvt. Ltd. Vs. Commissioner of Customs & Central Excise Goa 2014 (34) S.T.R. 562 (Bom.)
(vi) Commr. of C.Ex., Goa Vs. Andrews Telecommunications India P. Ltd.
2012 (28) S.T.R. 588 (Tri.-Mumbai)
(vii) MGM International Exports Ltd. Vs. Commr. of C. Ex.(S.T.), Chennai 2010 (20) S.T.R. 663 (Tri.-Chennai)
(viii) Elgi Equipments Ltd.Vs. Commissioner of C. Ex., Coimbatore 2013 (31) S.T.R. 583 (Tri.-Chennai)
(ix) Union of India Vs. Rahasthan Spinning and Weaving Mills Ltd.
2014 (310) E.L.T. 296 (Raj.)
(x) M.C.I. Leasing (P) Ltd. Vs. Commissioner of Central Excise, Mysore 2014 (33) S.T.R. 497 (Kar.)
5. I have carefully considered the submissions made by both the sides. I find that the appellant have admittedly paid the service tax on Business Auxiliary Service even though such service was not leviable to service tax. However for the purpose of claiming refund of such amount of service tax, which was paid by the appellant, in the Central Excise Act Section 11B is only provision which deals with refund of any amount refundable to any person. Section 11B is applicable in the case of service tax matter by virtue of Section 83 of the Finance Act 1994. In my view, since the amount claiming refund by the appellant can be refunded only under Section 11B, the limitation provided in the said Section shall also apply for sanction of refund. There is no other provision for refund of Service Tax/Excise duty except Section 11B of the Act, therefore limitation is applicable. It is the contention of the Ld. Counsel that if the service is not a taxable service the payment made is without authority of law, hence Section 11B is not applicable for refund of the such amount. In this regard, I am of the view that in every case of refund the amount is refundable only where it is not payable and accordingly every such amount shall be treated as payment without authority of law, if this is accepted then Section 11B will stand redundant as in every refund matter Section 11B shall not apply for the reason that any amount which is refundable is neither the service tax nor excise duty and all such amount shall be deemed to be paid without authority of law. Therefore in my considered view, at the time of payment the assessee pays the amount under a particular head such as service tax, excise duty etc. and when subsequently it is found that this amount is not payable, the same amount stand refundable to the assessee and such refund is treated as refund of service tax/duty only. Therefore, the provision if any applies for refund of such duty is only provided under Section 11B and there is no any other provision. Therefore in my view, any amount which is to be refunded shall be refunded in accordance with Section 11B which include the condition of time limitation. As regard judgments cited by the Ld. A.R. on going through those judgments, I find that the judgments relied upon by the Ld. A.R. which includes the various Supreme Court judgments wherein the Honble Supreme Court has categorically held that for refund of any amount under Section 11B stipulates the time limitation which has to be followed mandatorily. I, therefore of the view that this issue has been clearly settled by the Honble Supreme Court that even though the refund of duty recovered without authority of law but for the refund claims made before the departmental authorities, limitation provided under the Customs Act/Central Excise Act or the Rules made thereunder is applicable. The authorities functioning under the Act bound by its provision in the case of Doaba Co-operative Sugar Mills (supra) which was held that-
6. It appears that where the duty has been levied without the authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rules framed thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder 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. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount due to the department in case when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund. This was the view taken by the Tribunal in a previous decision in the case of Miles India Ltd. v. The Assistant Collector of Customs but it was assailed before this Court. The appeal was withdrawn. This Court observed that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor in the relevant provisions of the Customs Act, 1962. If really the payment of the duty was under a mistake of law, the party might seek recourse to such alternative remedy as it might be advised. See the observations of this Court in Miles India Ltd. v. The Assistant Collector of Customs [1987(30) E.L.T.641 (S.C.) = 1985 E.C.R. 289].
In the case of Miles India Ltd. (supra) held that-
After the matter was heard for some time and it was indicated that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefore under Section 27(1) of the Customs Act, 1962, learned counsel for the Appellant sought leave to withdraw the appeal. We accord their leave to withdraw the appeal but make it clear that the order of the Customs, Excise & Gold (Control) Appellate Tribunal suffers from no infirmity. If really the payment of the duty was under a mistake of law, the appellant may seek recourse to such alternative remedy as it may be advised. The appeal is accordingly dismissed as withdrawn.
In the case of Anam Electrical Manufacturing Co. (supra) the Honble Supreme Court with regard to limitation under Section 11B lays down the following guidelines :
Where refund application was filed by?(1) manufacturer/purchaser beyond the statutory time limit of Section 11B/27 ibid. In the case of Bajaj Foods Ltd. (supra) the Honble Tribunal held as under
The Appellate Tribunal in its impugned order had held that the limitation period prescribed under the Limitation Act would not apply for the refund of export cess which was paid by the appellant on account of ignorance of the law. Since the refund claim was filed beyond the period prescribed under the Customs Act, the same was righty held by the Commissioner as not sustainable being barred by limitation period. The above judgment was upheld by the Honble Gujarat High Court. Similarly in the case of Andrew Telecom India Pvt. Ltd. of the Honble Bombay High Court, the fact was that the assessee paid the service tax, which was not payable and subsequently refund claim was submitted after one year of the payment. The Honble High Court has held that the refund claim is covered by Explanation (B) (f) of Section 11B (1) of Central Excise Act 1944, as applicable to service tax vide Section 83 of the Finance Act, 1994, refund claim is not sustainable as it was filed beyond 1 year from the date of payment of service tax. In view of the above, Honble Supreme Court judgment and the jurisdictional Bombay High Court judgment, all the judgments relied upon by the Ld. Chartered Accountant stands distinguished. I am of the view that since refund of any amount is covered by Section 11B and there no other provision, this Tribunal being a creature under the Central Excise/Customs Act cannot go beyond the statute and therefore cannot relax the time limitation provided under the statute. As per my above discussion and settled legal position, I am of the considered view that the refund claim being filed after one year is hit by limitation and therefore correctly rejected by the lower authority. The impugned order is upheld and the appeal filed by the appellant is dismissed.
(Pronounced in court) (Ramesh Nair) Member (Judicial) SM.9
Appeal No. ST/86430/15