Custom, Excise & Service Tax Tribunal
M/S. Elgi Equipments Ltd vs Cce, Coimbatore on 15 March, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Appeal No. ST/145/2012
(Arising out of Order-in-Appeal No. 230/2011 dated 13.12.2011 passed by the Commissioner (Appeals), Coimbatore)
For approval and signature:
Honble Shri P.K. Das, Judicial Member
1. Whether Press Reporters may be allowed to see 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 the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
M/s. Elgi Equipments Ltd. Appellant
Vs.
CCE, Coimbatore Respondent
Appearance Shri M. Saravanan, Consultant, for the Appellants Shri D.P. Naidu, Addl. Commissioner (AR) for the Respondent CORAM Honble Shri P.K. Das, Judicial Member Date of Hearing: 15.03.2013 Date of Decision: 15.03.2013 Final Order No. ____________ The appellant has filed this appeal against rejection of refund claim of Rs.1,41,524/- as time-barred.
2. Heard both sides and perused the records.
3. The learned counsel submits that they have erroneously paid service tax on rents received from the Central Excise Department for their finding, which is exempted from Service Tax. He submits that this is a mere deposit and it cannot be treated as tax and therefore the limitation prescribed under Section 11B of the Central Excise Act would not apply. He fairly submits that in this case refund claim was filed on 24.2.2009 which was rejected for the period prior to 24.2.2008 as it is beyond the stipulated period of one year as prescribed under Section 11B of the Central Excise Act made applicable to Finance Act, 1994. He relied upon the decision of the Honble Madras High Court in the case of Natraj and Venkat Associates Vs. Asstt. Commissioner of Service Tax 2010 (249) ELT 337 (Mad.). He also relied upon the decision of the Honble Karnataka High Court in the case of K.V.R. Constructions Vs. CCE, Bangalore 2010 (17) STR 6 (Kar.). He also relied upon the decision of the Tribunal in the cases of (i) CCE Vs. Shankar Ramchandra Auctioneers 2010 (19) STR 222; (ii) CCE Vs. Pratibha Constn. Engnr. & Contr. (I) P. Ltd. 2011 (22) STR 182 and (iii) Veeka Prints Pvt. Ltd. Vs. Commissioner of Customs 2010 (259) ELT 749.
4. The learned AR submits that it is well settled law that the authorities functioning under the Finance Act, 1994 is bound by its provisions and therefore the lower authorities rightly rejected the refund claim after following the provisions of Section 11B of the Central Excise Act, 1944 made applicable to the Finance Act, 1994. He relied upon the following decision:-
(i) Asstt. Collector of Central Excise Vs. Kashyap Engg. & Metallurgicals Pvt. Ltd. 2002 (142) ELT 518 (SC)
(ii) Collector Vs. Doaba Co-operative Sugar Mills 1988 (37) ELT 478 (SC)
(iii) Mysore Leasing and Finance Ltd. Vs. Commissioner of Central Excise and Customs 2009 (14) STR 54 (Tribunal)
5. After hearing both sides and on perusal of the record, I find force in the submission of the learned AR. The Honble Supreme Court in the case of Doaba Co-operative Sugar Mills (supra) decided the issue as under:-
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].
6. At any event, the decision cited by the learned consultant was passed by the writ courts of the Honble High Court. In the case of Natraj and Venkat Associates (supra), the Honble High Court observed that High Court is empowered to entertain refund claim as what was paid was not service tax. A case is decided on the basis of the Honble Supreme Court, there is no need to discuss the decision of the Tribunal as referred by the learned counsel. The power of the Central Excise officers is confined within the statute of the Central Excise Act, 1944. Hence, both the authorities have rightly rejected the refund claim which is beyond the stipulated period. There is no reason to interfere with the order passed by the Commissioner (Appeals). Accordingly, the appeal filed by the appellant is rejected.
(Dictated and pronounced in open court) (P.K. Das) Judicial Member Rex 2