Prabhakar C Suvarna S/O, Chudappa ... vs Commissioner Of Central Excise And ...

[Arising out of Order-in-Appeal No. 161-2011 dated 29/11/2011 passed by CCE(Appeals), Mangalore]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K ARYA, TECHNICAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 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 of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

PRABHAKAR C SUVARNA S/O, CHUDAPPA SALIAN D.NO.25-13-737, OPP WOMEN WELFARE CENTER, SOUTERPET, VALENCIA MANGALORE 575002 Appellant(s)

Versus

Commissioner of Central Excise and Service Tax MANGALORE NULL 7TH FLOOR...TRADE CENTRE, BUNTS HOSTEL RD., MANGALORE, - 575003 KARNATAKA Respondent(s)

Appearance:

Ms. Swarna, Advocate For the Appellant

Shri Ajay Saxena, Commissioner(AR) For the Respondent

Date of Hearing: 22/09/2015

Date of Decision: 22/09/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K ARYA, TECHNICAL MEMBER

Final Order No. 21981 / 2015

Per : ARCHANA WADHWA

After hearing both sides duly represented by Ms.Swarna, Advocate for the appellant and Shri Ajay Saxena, Commissioner(AR) for the Revenue, we find that the appellant, who was registered with the Department of Service Tax under the category of works contract service, filed a refund claim of Rs.1,44,200/- in pursuance to Boards Circular No.108/02/2009-ST dt. 29/01/2009 inasmuch as he was not required to pay service tax but the same stands paid by him during the period June 2008 to April 2009. The said claim was filed by the appellant on 24/11/2009.

2. The original adjudicating authority, vide his impugned order, sanctioned the refund claim which was falling within the limitation period but rejected an amount to the extent of Rs.1,03,000/- as barred by limitation, inasmuch as the same was filed after the prescribed period of one year. The said order of the original adjudicating authority was upheld by Commissioner(Appeals). Hence the present appeal.

3. The short issue required to be decided is as to whether the refund claim of service tax filed by the assessee after the period of limitation prescribed under the law is to be sanctioned or not, without raising the issue of limitation. The contention of the learned advocate is that inasmuch as payment of service tax was a mistake, the period of limitation would not apply in such cases. On the other hand, the Revenues contention is that the Tribunal, being a creation of the statute, has to work within the provisions of law and cannot extend the period of limitation as per the provisions under the law. Learned Commissioner(AR) strongly relies upon the Tribunals decision in the case of CCE, Hyderabad-II Vs. XL Telecom Ltd. [2006(206) ELT 303 (Tri. Bang.)] wherein relying upon the Honble Supreme Courts decision in the case of Asst. Collector Vs. Anam Electrical Manufacturing Co. [1997(90) ELT 260 (SC)], it was held that statutory time limit is applicable to claim for refund of even illegal levies and time limit cannot be extended by any authority. To the same being is the decision of the Honble Supreme Court in the case of Mafatlal Industries Ltd. Vs. UOI [1997(89) ELT 247 (SC)].

4. It is well settled law that the authorities working under the Central Excise law are bound by the provisions of law including the provisions of limitation prescribed in terms of Section 11B of the Central Excise Act. The said limitation period for claiming refund cannot be extended in any circumstances including the payments made by an error of law or under mistake. The issue is settled and we find no reasons to take a view different than the one taken in catena of judgments laying down to that effect. We find no merits in the appeal and the same is accordingly rejected.

(Order pronounced and dictated in open court)

ASHOK K ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER

Raja.

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