The Madras High Court ruled that the purchaser is not entitled to claim refund of excise duty paid under protest after the expiry of limitation period of 6 Months.
The petitioner, M/s.M.G.M.International Exports Ltd. has prayed before the court to direct the respondent to refund the tax amount of Rs.1,10,999/- with minimum interest borne by the petitioner under mistake of law. The petitioner was a recipient of service from M/s.IMC Limited. The said company had charged service tax on the petitioner for utilizing the storage facility.
During the said period, storage services offered by M/s.IMC limited to the petitioner were not liable to service tax as per the clarification dated April 24, 2002 of the Central Board of Excise & Customs, New Delhi. The refund claim of the petitioner was rejected by the Original Authority namely the respondent herein by an Order-in-Original No.85/07 dated March 2, 2007 on the ground that the claim was time barred under Section 11B of the Central Excise Act, 1944 as made applicable to refund of service tax under Section 83 of the Finance Act, 1994.
Opposing the prayer for grant of refund, the learned counsel for the respondent submits that the writ petition was liable to be dismissed or in the alternative the petitioner should be relegated to pursue the remedy before the Hon’ble Division Bench by way of C.MA under Section 35(a) of the Central Excise Act, 1944 as made applicable to Appeals against orders of the Tribunal under Section 83 of the Finance Act, 1994.
The coram of Justice C.Saravanan in the light of the decision of the Supreme Court in the case of National Winder v. Commissioner of Central Excise, Allahabad held that if duty is paid by a manufacturer under protest then limitation of six months will not apply to a claim of refund by a purchaser.
“Therefore, I am unable to persuade myself to grant any relief to the petitioner even though the petitioner has been wrongly made to pay and suffer tax. Therefore, I dismiss this writ petition with liberty to the petitioner to implement itself in the Writ petition if any that may have been filed by IMC Ltd,” the Single Judge Bench said.Subscribe Taxscan AdFree to view the Judgment