Page 78 - GSTL_16th July 2020_Vol. 38_Part 3

316 GST LAW TIMES [ Vol. 38
[2017 (6) G.S.T.L. 12 (Mad.)], dismissed the same. While observing that the find-
ings of the Tribunal to the effect that the levy was only without the authority of
law but not unconstitutional was erroneous, the bench states at paragraphs 9 to
15 as follows :
‘9. While we are in agreement with the Learned Counsel for the Ap-
pellant/Assessee that the observation of the Tribunal, that the levy should
be construed as one “without authority of law” as against being “unconsti-
tutional”, is erroneous, we are unable to disagree with the Tribunal, that
perhaps, the remedy for claiming refund, lay, in the Appellant/Assessee fil-
ing an action by way of a suit or writ petition.
10. This was, in our opinion, at best, a case where the tax Authorities
had acted beyond their jurisdiction. The tax Authority, being creature of
statute, had no jurisdiction to collect tax from the recipient of service, prior
to the date of amendment of the Statute, which, admittedly, was brought
about on 18-4-2006.
11. Having said so, clearly, the Appellant/Assessee could only have
either instituted a suit, albeit, within the period of limitation or, filed a writ
petition to ventilate its grievance.
11.1. Concededly, the Appellant/Assessee, did neither and, instead,
filed application under Section 11B of the Central Excise Act, 1944.
12. Thus, in our view, ultimately, the Tribunal came to the correct
conclusion and therefore, no interference, is called for.
13. In view of our discussion above, Question No. (i) is answered in
favour of the Revenue, for its conclusion, subject to caveat set forth above
with regard to its observation that the levy could be construed without au-
thority of law but not unconstitutional.
13.1. Insofar as, Question No.(ii) is concerned, it is answered against
the Assessee and in favour of the Revenue.
13.2. As regards, Question No.(iii), in which, there is a reference to
the judgment of the Gujarat High Court in the matter of : Binani Cement v.
Union of India reported in 2013 (288) E.L.T. 193 (Guj.) - that judgment, in our
opinion, would have no application to the instant case, as in that matter, the
Gujarat High Court was dealing with a writ petition. Clearly, the Tribunal,
in the instant case, was exercising powers, as a creature of the statute and
therefore, could not have granted any relief to the Appellant/Assessee,
having regard to the nature of its jurisdiction. Therefore, Question No. (iii),
will also have to be answered against the Assessee and in favour of the
Revenue.
14. Therefore, while we are of the opinion that no relief can be grant-
ed to the Appellant/Assessee, in view of the jurisdiction that we are pres-
ently invested with, it will be open to the Appellant/Assessee, to take re-
course to any other remedy, that may be available to it in law, to seek relief.
15. We are sure, the concerned Court will take a view in the matter,
after hearing both sides and after having regard to the position in law, as
regards the relief claimed by the Assessee.’
It is as a consequence to the aforesaid order that the petitioner is before this
Court by way of the present writ petition.
7. Heard Mr. N. Viswanathan, Learned Counsel for the petitioner and
Mr. K. Magesh, Learned Standing Counsel for the respondents.
8. Learned Revenue Counsel urges that the refund sought is not in line
with Section 11B of the Central Excise Act, 1944 and as such is not liable to be
granted.
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