Page 230 - GSTL_2nd April 2020_Vol 35_Part 1

132 GST LAW TIMES [ Vol. 35
TMI 1487 (Tri.-Mum.) = 2016 (42) S.T.R. 377 (Tri.); (iv) M/s. Jain Irrigation Systems
Ltd. v. CCE, Nashik; 2015 (9) TMI 688 (Tri.-Mum.) = 2016 (42) S.T.R. 377 (Tribu-
nal). Per contra Learned Authorised Representative reiterated the findings rec-
orded in the impugned order and submitted that the Learned Commissioner has
rightly relied upon the decision of the Hon’ble Supreme Court in the matter of
Anam Electrical (supra). He also relied upon the decision of the Hon’ble Supreme
Court in the matter of Mafatlal Industries (supra) and submitted that no claim for
refund of any duty as filed by the Appellants shall be entertained except in ac-
cordance with the provision of Section 11B as filed by the Appellants. He further
submitted that the refund claim beyond the limitation period of one year has
rightly been rejected by the authorities below.
5. I have carefully considered the rival submissions as well as the deci-
sions cited by both the sides. One of the important aspect of the matter is that the
amount paid by the appellant has been deposited under a proper service tax
head of account through four payment challans. The said amount has been ap-
propriated by the Government as Service Tax. Later, the appellant realized that
the services were exempt by a notification. Section 11B of the Central Excise Act,
1944 made applicable to service tax refund clearly stipulates that any person
claiming refund of any duty of excise to make an application for refund of such
duty to the Assistant Commissioner of Central Excise before the expiry of one
year from the relevant date in such form and manner as may be prescribed and
the application shall be accompanied by such documentary or other evidence as
the applicant may furnish to establish that the amount of duty of Excise in rela-
tion to which said refund is claimed was collected from or paid by him and the
incidences of such duty had not been passed on by him to any other person. It is
clear that the department is governed by the provisions of Section 11B as the
claim has been filed as per the said mandate only. It is not disputed that the re-
fund claim has been preferred by the Appellants in terms of the provisions of
Section 11B. If that being the case, it cannot be said that except for limitation oth-
er provisions of Section 11B will be made applicable to the appellant. The
Learned Chartered Accountant repeatedly submitted that the amount is paid
mistakenly and the same is not a tax. Therefore it should be returned without
applying the limitation as prescribed by Section 11B. In my view the aforesaid
submission is not convincing. The Learned Chartered Accountant also argued
that various High Court and the Hon’ble Supreme Court have allowed the claim
of the parties for refund of money without applying the provisions of limitation
under Section 11B by holding that the amount collected has no sanctity of law as
the same is neither a duty nor tax and accordingly the same should be returned
to the party. In my view, the Hon’ble Supreme Court and the High Courts can
pass such orders by exercising powers under the Constitution. But such powers
are not vested in this Tribunal for allowing refund beyond the statutory time-
limit prescribed by the statute. The Tribunal is creature of statute and cannot ex-
ercise such sweeping powers which are bestowed upon the Constitutional
Courts. In the matter of Miles India Ltd. v. Assistant Commissioner, Customs; 1987
(30) E.L.T. 641 the Hon’ble Supreme Court has held that the authorities under a
statute are bound by the period of limitation provided under that statute. Admit-
tedly, the amount is paid as a tax, the refund has been claimed from the jurisdic-
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