Whether the time limit of one year as provided u/s.
11B of the Central Excise act, 1944 is applicable to service tax rebate
cases specifically when the Notification does not provide any time
limit for filing such rebate claim?
Facts:
Rebate claim
filed by the appellants vide Notification No. 11/2005 was rejected on
ground that services provided in India to international inbound roamers
registered with Foreign Telecom Network operator but located in India at
the time of provision of service, was not export of services vide
Export of Service Rules, 2005 and that the refund claim was not filed
within one year and therefore, the claim was time barred. Further,
doctrine of unjust enrichment was also not fulfilled.
The
appellant contended that the Tribunal in its own case, relying on Paul
Merchants Ltd. vs. CCE 2013 (29) STR 257 (Tri.), had delivered a
favourable decision and had held that that the services provided by
appellant were “export of services” since the services were rendered to
foreign telephone service providers, who were located outside India and
the principle of unjust enrichment is not applicable for export
transactions vide section 11B (2) (a) of the Central Excise Act, 1944.
Also, there was no time limit to file rebate claim under Notification
No. 11/2005. Relying on the various High Court decisions, the appellants
advanced the argument that the ratio of Central Excise decisions will
not be applicable to service tax export matters and therefore, the time
limit prescribed in section 11B of the Central Excise Act for filing of
refund claim does not apply to service tax rebate claim filed under
Notification No. 11/2005.
The respondents claimed that the
decision of Paul Merchants Ltd. (supra) was challenged before High Court
and the case was admitted. Further, the decision delivered in
appellant’s own case was also challenged before the High Court and
therefore, the decisions given were in jeopardy. Since section 11B is
made applicable to service tax vide section 83 of the Finance Act, 1994,
time limit of one year is applicable even to the rebate claims filed
under Notification No. 11/2005. Even if it was assumed that there was no
time limit prescribed, the authority should exercise their powers
within reasonable period, i.e., one year.
Held:
The
decisions delivered in case of Paul Merchants Ltd. (supra) and in
appellant’s own case were not granted any stay. Therefore, on merits,
the appellants were eligible for rebate claim. Since the transaction was
one of export, the principle of unjust enrichment was not applicable in
view of specific provisions u/s. 11B. Time limit of one year was
applicable even to rebate claims vide section 11B of the Central Excise
Act, 1944 read with section 83 of the Finance Act, 1994. Even if it was
assumed that there was no time limit, it is a settled law that though
the law is silent, a reasonable time limit should be read into the Law.
Relying
on decisions of GOI vs. Citadel Fine Pharmaceuticals 1989 (42) ELT 515
(SC) and Everest Flavours Ltd. 2012 (282) ELT 481 (Bom.), 7 rebate
claims were remanded back for the limited purpose of verification as to
whether the claims were time barred or not in view of decision delivered
therein and two rebate claims were allowed.
