R.K.SINGH,MEMBER (T) -
(1.)The appellants filed appeal against Order -in -Appeal No. 24/SM/ST/D -II/14/ST/DLH dated 17 -4 -2014 which upheld the Order -in -Original No. 170/2013 -R dated 22 -8 -2013 in terms of which out of the amount of Rs. 42,70,470/ - claimed by the appellants, the primary adjudicating authority sanctioned a refund of Rs. 32,70,939/ - but rejected the claim to the tune of Rs. 9,99,531/ - holding that amount to be time -barred. The appellants have contended that they had filed the refund claim electronically on 5 -7 -2012 and reckoned from that date the entire amount was within the limitation period of one year. They stated that the adjudicating authority has reckoned the date of filing the refund as 29 -11 -2012 when they submitted the necessary documents in response to a query by the department. The appellants have put forth the following contentions in support of their claim.
I. They referred to Trade Notice No. 14/ST/2009 -ST dated 17 -9 -2009 issued by Commissioner of Service Tax (Del.) wherein it was stated that using the ACES the user will be able to take registration on line electronically, file statutory the returns, claims, intimation and permission/refunds and request for provisional assessment view and track the status of their documents online.
II. Even in the Frequently Asked Questions (FAQs) issued by CBE & C and DGST on 1 -9 -2010 it was stated in answer to the question, "For what exactly can ACES be used - that it could be used for electronic filing of documents, such as returns, claims, letter of permission intimations etc. and to the question, "What are the service tax applications covered in ACES -, "the booklet answered," Service tax applications such as registration, returns, refunds, ST -3A, audit, dispute are solutions are covered in ACES."
III. In the light of the foregoing clarifications the refund claim filed by them electronically should be treated as the claim filed under Sec. 11B.
IV. Alternatively they argued that what was deposited by them cannot be treated as Service Tax as the same was not payable and so the provision of Sec. 11B of the Central Excise Act, 1944 are not applicable and therefore refund claim cannot be treated to be time -barred and cited several judgments to that effect.
V. The Central Government cannot enrich itself from the amount which was not due.
I have considered the contentions of the appellants. It is a fact that the Trade Notice dated 17 -9 -2009 and the FAQs issued by the Commissioner of Service Tax, New Delhi and DGST respectively clearly mentioned that the assessees could filed refund claims online and that is what was done by the appellants. They only submitted the documents subsequently. I have perused the electronic submission made by the appellants on 5 -7 -2012. The application contains all the details including the amount of refund claimed and the details of challans under which the service tax was deposited and even the grounds for refund were mentioned in the application. I find that in a similar situation in the case of M/s. NCS Pearson India Private Ltd. v/s. C.C. & C.E. & S.T., Noida, Tribunal by its Final Order No. 58499 -58500/2013 dated 1 -12 -2013 [2014 (313) E.L.T. 639 (Tribunal)] has held as under: -
"The issue involved in these appeals is whether the claims filed by the appellants are time -barred or not. It is contention of the appellants that refund claims in questions were filed by the, electronically on 13 -12 -2010 in view of the circular No. dated 23 -3 -2010 and the Trade Notice No. 14/ST/2009 dated 17 -9 -2009 issued by Commissioner of Service Tax Delhi. There is no dispute about this fact that these claims were submitted by them electronically on 13 -12 -2010. I find that the Range Superintendent vide his letter dated 13 -5 -2011 asked the appellant to submit the hard copy of the refund claim in office of the Central Excise Division Noida. In response to that the claims were submitted by the appellant in the Divisional Office on 25 -8 -2010 The fact of submission of the claim on 13 -12 -2010, has been admitted by the Range Superintendent in his letter dated 13 -5 -2011. Since the appellants have submitted the claim electronically in pursuance of Board Circular as well as the trade notices, it will be in interest of justice not to treat the claims as time -barred as the refund claims were electronically submitted on 13 -12 -2010. I therefore set aside the Order -in -Appeal and hold that claims can not be rejected as time -barred in view of the fact that the claims were submitted electronically within time. The appeals filed by the appellant are allowed."
In another case of Angiplast Pvt. Ltd. v/s. CCE, Ahmedabad -, 2010 (19) S.T.R. 838 (Tri. -Ahmd.) CESTAT held to the effect that the initial date of filing the refund claim was relevant for the purpose of deciding whether the claim was filed within time and the subsequent date of filing in proper form and with documents is not to be considered as actual date of filing.
In the light of the analysis above, it is held that in the present case the date of filing the refund claim electronically, which is 5 -7 -2012, is to be taken as the date of filing the refund claim and with reference to that date the impugned amount rejected is not barred by time.
(2.)Thus while the impugned rejection is not sustainable, in passing I would like to add that regarding the other ground taken by the appellants that what was paid was not service tax and therefore the time -limit of one year prescribed under Sec. 11B of Central Excise Act, 1944 would not be applicable, suffice to say that the creatures of the Central Excise Act (CESTAT included) are and continue to remain bound by the boundaries set out in the Act under which they are called upon to decide the refund cases. In other words, for the creatures of the Statute (including the Deputy Commissioner and the CESTAT Tribunal) the time -limit prescribed under Sec. 11B ibid is sacrosanct. The Hon'ble Supreme Court in the case of Mafatlal Industries v/s. Union of India -, 1997 (89) E.L.T. 247 (S.C.) held that all claims for refund except when the levy is held to be unconstitutional are to be preferred and adjudicated upon under Sec. 11B of the Central Excise Act or under Sec. 27 of the Customs Act, 1962. In the case of Miles India Ltd. v/s. Assistant Commissioner, Customs -, 1987 (30) E.L.T. 641 the Supreme Court held that the authorities under a statute are bound by the period of limitation provided under that statute. Yet again in the case of Assistant Collector of Customs v/s. Anam Electrical Manufacturing Co. -, 1997 (90) E.L.T. 260 (S.C.) the Supreme Court again clarified as under: -
"Where a Refund application was filed by the manufacturer/purchaser beyond the period prescribed by the Central Excise Act/Customs Act in that behalf, such petition must be held to be untenable in law. Even if in any appeal suit or writ petition, direction has been given that the refund application shall be considered with reference to the period of limitation prescribed in the Central Excise Act/Customs Act - or that the period of limitation shall be taken as three years - such a direction of the Appellant Court/Civil Court/High Court shall be deemed to be unsustainable in law and such direction shall be set aside. The period prescribed by the Central Excise Act/Customs Act for filing a refund application in the case of "illegal levy" cannot be extended by any Authority or Court."
In the light of this analysis, it is evident that even if the Superior Courts in some cases having regard to the specific facts/circumstances ordered refund to be granted ignoring the time -limit prescribed under Sec. 11B ibid, the creatures of Central Excise Act or Customs Act, 1962 can not arrogate to themselves similar powers, they remain bound by the boundaries of the statute which created them while the Superior Courts not being creatures of the said statutes are not so bound.
In the light of the analysis and discussion in Para 2 above, I allow the appeal and direct the primary adjudicating authority to dispose of the refund claim of the impugned amount treating the date of filing to be 5 -7 -2012.
(Pronounced in the court on 27 -3 -2015)