Page 232 - GSTL_2nd April 2020_Vol 35_Part 1

134 GST LAW TIMES [ Vol. 35
8. Similarly, the Principal Bench of the Tribunal in the matter of C.C.E.,
Raipur v. Manorath Builders (P) Ltd.; 2010 (18) S.T.R. 453 (Tri.-Del.) while dealing
with a similar issue, while allowing the Appeal filed by Revenue held as under :-
“3.1 There is no dispute about the fact that the respondent had, on their
own, obtained service tax registration for payment of service tax on their
activity by treating the same as taxable service under Section 65(105)(zzzh)
read with Sections 65(30A) and 65(91A) and during the period from March,
2006 to September, 2006, the tax was paid by them without any protest. It is
only after issue of the Board’s Circular on 23-8-07 that they became aware
that their activity is not taxable and they filed refund claim on 13-9-07. The
refund claim, has obviously, been filed after on expiry of period of one year
from the date of payment of service tax. Hon’ble Delhi High Court in the
case of Jumax Foam Pvt. Ltd. v. U.O.I. (supra) relying upon Hon’ble Supreme
Court’s judgment in the case of Mafatlal Industries Ltd. v. U.O.I. (supra) and
Assistant Collector of Customs and Others v. Anam Electrical Manufacturing Co.
and Others (supra) has held that even if some, tax is collected by the authori-
ties under the Act by misinterpreting or misapplying any of the rules, regu-
lations or notifications or erroneous determination of relevant facts, the
same may be called an illegal levy, however, for the refund of such amount,
though illegally collected, a claim has to be necessarily preferred under and
in accordance with the respective enactments before the authorities pre-
scribed thereunder and within the period of limitation prescribed therein.
In view of this, I hold that the limitation prescribed under Section 11B,
made applicable to the service tax by virtue of Section 83 of the Finance Act,
1994, would be applicable and since in this case, there is no dispute about
the fact that refund claim has been filed after the expiry of the limitation pe-
riod of one year from the relevant date and the payment of service tax was
without any protest, the refund claim has to be treated as time-barred. In
view of this, the impugned order is not sustainable and the same is set
aside. The Revenue’s appeal is allowed.”
9. Even though the appellant had paid Service Tax on the services,
which is not leviable to service tax during the relevant time, still they had to file
the refund claim within the period prescribed under Section 11B since the statu-
tory authority cannot ignore the specific enactments under which the refund
claim is filed. In a recent decision this Tribunal in the matter of Service Tax Appeal
No. 87462 of 2018 titled as M/s. Dharamchand Paraschand Exports v. Commr. of CGST
vide order dated 3-4-2019 while following the law laid down by the Hon’ble Su-
preme Court in the matter of Mafatlal Industries (supra) has held that except
where unconstitutionality of a provision under the levy was created, no refund is
admissible if filed beyond the prescribed limit stipulated in Section 11B ibid.
10. Admittedly in the instant matter the refund claim had been filed
beyond the statutory time limit of one year, therefore in my view the Learned
Commissioner was justified in rejecting the Appeal filed by the Appellant. While
dealing the argument raised by the Appellant that in similar circumstances in
Appellant’s own case, for a different period, the refund claim was upheld by the
another Commissioner, the Learned Commissioner herein in the impugned order
held as under :-
“6. The appellants have submitted a copy of the O-I-A No.
PK/310/MC/2017, dated 30-11-2017 issued on 6-12-2017, of the Commis-
sioner (Appeals-II), Mumbai which was filed by the appellants against O-I-
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