P.G. Chacko, Judicial Member. - The appellant is the Proprietorship of one Shri Surinder Luthra engaged in the outdoor advertising business of installing and displaying Hoardings/Neon Signs. He has registration, for the purpose, with the Commissionerate of Central Excise, Delhi-I and is covered by the Service Tax provisions of Finance Act, 1994. The Hoardings/Neon Signs displayed by the appellant for a few of his clients, from whom he had collected service tax along with rental in advance, happened to be removed pursuant to directives of the Hon’ble Supreme Court sometime in November-December 1997. Those clients demanded refund of the respective amounts paid by them. But the appellant had already paid the service tax components of the amounts to the revenue which totalled to Rs. 99,383. The appellant, therefore, filed with the Assistant Commissioner of Central Excise a claim on 4-8-1998 for refund of Rs. 99,383 on the ground that the service tax already collected from the clients had to be returned to them. The Assistant Commissioner rejected the claim on the ground of time-bar. In the appeal preferred by the assessee, the Commissioner (Appeals) has upheld the lower authority’s order. Hence the present appeal.

2. Examined the records and heard both sides. Shri Surinder Luthra has reiterated the grounds of the appeal. He has submitted that the amount of Rs. 99,383, which was collected in advance from his clients, was deposited with the Government before the service was actually rendered to the clients and therefore, the deposit is not in the nature of service tax but only a provisional deposit which does not attract the time-bar provisions of section 11B of the Central Excise Act. The DR has opposed this argument by referring to the facts of the case as well as to the Service Tax provisions of the Finance Act, 1994.

3. We have considered the submissions. The amounts, totalling to Rs. 99,383, were credited to the revenue under the Head of Account "0044-Service Tax" through TR-6 challans (copies available on record). Those payments were purportedly payments of Service Tax only. They were payments towards Service Tax admittedly too, inasmuch as, in the covering letter for the refund claim, the appellant expressly described the claim as one "for the refund of Service Tax already deposited by us during the year 1997-98". In that letter, he also admitted the applicability of the limitation provisions of section 11B of the Central Excise Act to the refund claim. In view of these facts, we do not see any sense in the appellant’s present disclaimer of section 11B ibid. We also observe that ld. Commissioner (Appeals) has correctly applied the provisions of section 11B to the case on hand.

4. The refund claim was filed on 4-8-1998, admittedly after the expiry of six months from the dates of payments of the Service Tax amounts. The claim was, thus, barred by limitation under section 11B of the Central Excise Act, there having been no case for the appellant that the Service Tax was paid under protest. The order of the Commissioner (Appeals) only requires to be upheld. This Tribunal has no discretion under section 11B to condone the delay involved in the filing of the refund claim and hence the appellant’s prayer to this effect cannot be granted. We, therefore, reject the present appeal.