Refund claims filed before departmental authorities are governed by the statutory time limits prescribed under Section 11B of the Central Excise Act, 1944, and cannot be claimed under general limitation laws.

The present appeal is directed against the impugned order dated 04.05.2018 passed by the Commissioner (Appeals), CGST Panchkula, whereby, the Learned Commissioner (Appeals) has rejected the appeal of the appellant and upheld the Order-in-Original.

Briefly the facts of the present case are that the appellants filed refund claim of Rs. 45,71,696/- on 18.05.2017 for the period April, 2013 to June, 2014. The refund claim was filed on the ground that they received Manpower Supply Service from various service providers where the service provider charged service tax from them and which they paid to the service providers. However, in terms of Sr. No. 9 of Mega Exemption Notification No. 25/2012-ST (Sr. No. 9), being an educational institution, the services received by them did not attract levy of service tax. The appellants were issued Show Cause Notice No. 01/AC/ST/SIRSA/2017-18 dated 25.09.2017 proposing rejection of refund claim. After following the due process, the original authority rejected the refund claim of the appellant vide its order dated 28.12.2017 on the following grounds:

i) The University has not supplied the original invoices. It has provided only photocopies of the invoices of the service providers (Not attested by the authorized representative of the party) which are also not complete/ legible.

ii) It is not clear from the invoices as to what services were provided by service providers.

iii) It is not clear whether all the liabilities of service tax as involved in present refund claim were borne by the University or partially borne by the service providers.

iv) The University has not furnished all the undertakings as prescribed in Form R of the refund claim.

v) The University has not submitted any certificate from Chartered Accountant or any other documentary proof which may prove that the burden of service tax as involved in present refund claim has not been passed on to the third party.

vi) The University has not filed this claim within a period of one year from the date of deposit of service tax, as per section 11B of the Central Excise Act, 1944 read with section 83 of Finance Act, 1994.

vii) The University has not provided the proof of payment of service tax i.e copies of TR-6 challans etc, as involved in the present refund claim.

Viii) Copies of all contracts/ agreements made with service providers, pertaining to this refund claim have not been provided.

Aggrieved by the said order of the original authority, the appellant filed the appeal before the Commissioner (Appeals) who vide the impugned order rejected the appeal of the appellant on the following grounds:

i) The University has not filed this claim within a period of one year from the date of deposit of service tax, as per section 11B of the Central Excise Act, 1944 read with section 83 of Finance Act, 1994.

ii) The applicant is service receiver not the service provider hence not the right person to claim the refund. Hence, the present appeal.

Heard both the parties and perused the material on record.

Learned consultant appearing on behalf of the appellant submits that impugned order is not sustainable in law and is liable to be set aside as the same has been passed without properly appreciating the facts and the law. He further submits that the assessing officer has failed to appreciate the fact that the appellant was not required to pay the service tax in the first place and mere a payment made by the appellant erroneously does not authorize the department to retain the same. He further submits that in the present case there is lack of authority to collect such service tax by the respondent. He further submits that when the liability to pay service tax does not exist, the provisions of Section 11B are not applicable. He further submits that the amount deposited by the appellant cannot be treated as duty merely because it was accepted by the Department. In support of his claim, he has relied upon the following decisions:

 M/s 3E I