A division bench of Delhi High Court on Tuesday upheld the order of the Commissioner of Customs, Excise and Service Tax which rejected an Hindustan Times claim for refund of Service Tax.
The Appellant, HT Media Ltd. is inter alia engaged in the business of printing of newspapers and providing space for advertisements in newspapers. They provide services of ‘sale of space or time for advertising services’ to various clients and raised invoices on them and thus, calculated service tax payable on the billed amount for the period between May, 2006 and January, 2007.
The Assessee stated that sometimes the invoices were only part realised, i.e. the invoices issued for services for the aforementioned period were realised in the subsequent period. It is accordingly averred that the Appellants “paid excess amount for the Relevant Period equivalent to difference between amount paid on billed amount and Service Tax payable on realised amount for services during the Relevant Period.” The appellant filed a refund application on 25th September, 2007 before the Assistant Commissioner of Service Tax, for refund of the excess amount of Rs. 14,92,703/- paid as service tax during the aforementioned period.
The said application came to be disposed of by the Assistant Commissioner by an order, inter alia, allowing the refund of Rs. 10,69,249/- and rejecting the refund of Rs.4,23,454/- on the ground that the said refund claim was barred by limitation under Section 11B of the Central Excise Act.
The division bench comprising of Justice S.Muralidhar and Justice Prathibha M. Singh observed that, Section 11B (7) of the Central Excise Act clearly mentioned that the limitation mentioned in 11B (1) shall not apply where any duty has been paid under protest.
The Court also observed that, no such protest in this scenario and held that the impugned order of the CESTAT affirming the above order of the Assistant Commissioner, and the consequential order of the Commissioner (Appeals) does not suffer from any legal infirmity.
The division bench also said that, “The Appellant does not dispute that it is liable to pay service tax for the services rendered by it. In such a situation, it is abundantly clear that the Appellant has to seek refund of service tax, paid in excess, in terms of and within the limitation period stipulated under Section 11B of that Central Excise Act i.e. before the expiry of one year from the relevant date. The expression ‘relevant date’ has been defined in clause (f) of Explanation (B) to Section 11B of the CE Act as “the date of payment of duty”.
Read the full text of the Order below.
