IMPORTANT POINTS
The appellant did not make any application for refund of the amount in the prescribed form within one year from the date of last payment of tax made by it. The proceedings pending before the Tribunal, at the time when the Supreme Court rendered the decision in Commissioner of Income Tax v. Bhayana Builders (P) Limited [(2018) 3 SCC 782]
• , were not proceedings against assessment of service tax on the value of materials supplied free of cost by the service recipients. The appeal pending before the Tribunal was against the order passed by the authorities rejecting the application for refund of amount
• A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment or levy has become final in his case, he cannot seek to reopen it nor can he claim refund without reopening such assessment/order on the ground of a decision in another person's case.

R.Narayana Pisharadi, J

The appellant is a private limited company. It is a registered service tax assessee. The appellant is engaged in the business of construction and in the process, providing the services known as commercial or industrial construction services, construction of residential complex services etc. These services are exigible to service tax as per the provisions of the Finance Act, 1994.

2. The dispute in the case relates to refund of an amount of Rs.53,48,526/-paid by the appellant as service tax during the period between 27.08.2012 and 06.03.2013.

3. Short payment of service tax by the appellant was detected in the audit conducted by the department in May, 2012. The reason stated for the short payment was that the appellant had not included the value of cement and steel supplied by the clients free of cost in computing the value of taxable service rendered by it during the period from January, 2008 to March, 2011. In response to the letter sent by the department to pay the amount of shortage, the appellant paid an amount of Rs.53,48,526/-on different dates during the period between 27.08.2012 and 06.03.2013.

4. On 23.10.2014, the appellant filed an application dated 14.10.2014 in the prescribed form for refund of the amount of Rs.53,48,526/-. The plea of the appellant was that in the light of the decision of the larger bench of the Customs, Excise and Service Tax Appellate Tribunal (for short 'the Tribunal') in another case, the value of materials supplied by service recipient free of cost shall not be taken into consideration in computing the taxable value of services rendered.

5. The Assistant Commissioner concerned rejected the application for refund of the amount on the ground that, it was filed beyond one year from the relevant date stipulated in Section 11B (1) of the Central Excise Act, 1944 (hereinafter referred to as 'the Act'). This order was confirmed by the first appellate authority and the Tribunal in the appeals filed by the assessee. However, the Tribunal has found that the appeal filed by the assessee against the proceedings initiated for payment of penalty has been allowed by the appellate authority and that it gives a fresh cause of action for the appellant to file a fresh application for refund of the amount and that it can avail that opportunity. The order of the Tribunal is now challenged in the present appeal.

6. The substantial questions of law for consideration in this appeal are:

(i) Whether, on the facts and circumstances of the case, Section 11B(1) of the Act was applicable in respect of the claim for refund of the amount made by the assessee?

(ii) Whether, on the facts and circumstances of the case, the Tribunal was correct in finding that the application for refund of the amount filed by the assessee was beyond the period of limitation provided under

Section 11B(1) of the Act?

7. We have heard Sri. G.Jayaprakash, learned counsel for the appellant and Sri.Sreelal N.Warriar, learned Standing Counsel for the department.

8. The main contention urged by the learned counsel for the appellant is that the period of limitation provided under Section 11B of the Act is not applicable to the refund application submitted by the appellant. Learned counsel has also contended that, even before filing the application for refund in the prescribed form, the appellant had made representation to the department for refund of the amount, stating that the amount collected from the company was not due from it. Learned counsel would also contend that the amount was paid on account of coercion and threat made by the authorities and the payment was made under protest and it cannot be treated as payment of service tax to attract Section 11B of the Act. Alternatively, learned counsel would submit that the period of limitation has to be computed from the date of judgment of the Supreme Court in Commissioner of Income Tax v. Bhayana Builders (P) Limited [(2018) 3 SCC 782] which has given finality to the issue as