Delhi High Court
Ht Media Limited vs The Commissioner Of Service Tax ... on 8 August, 2017
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ SERTA 4/2017
HT MEDIA LIMITED ..... Appellant
Through: Mr. Ashok Kumar Dhingra,
Ms. Smita Singh, Advocates.
versus
THE COMMISSIONER OF SERVICE TAX AND
OTHERS & ANR. ..... Respondents
Through: Mr. Sanjeev Narula, Senior Standing
Counsel for Department with
Mr. Abhishek Ghai, Advocate.
CORAM:
JUSTICE S. MURALIDHAR
JUSTICE PRATHIBA M. SINGH
ORDER
% 08.08.2017
Dr. S. Muralidhar,J.:
1. This appeal under Section 35 G (1) of the Central Excise Act 1944 (CE
Act) read with Section 83 of the Finance Act, 1994 against an order dated
10th January 2017 of the Customs, Excise and Service Tax Appellate
Tribunal ('CESTAT') dismissing the Appellant's appeal against the order-in-
appeal dated 10th November 2009 of the Commissioner of Customs, Excise
and Service Tax (Appeals) [hereafter Commissioner (Appeals)].
2. Admit. The following question of law is framed for consideration:
Whether the Customs, Excise and Service Tax
Appellate Tribunal was in error in rejecting the
plea of the Appellant/Assessee that its claim for
refund of the service tax paid under the state of law
is barred by limitation in terms of Section 11B of
the Central Excise Act, 1944?
3. The facts, in brief, are that the Appellant is inter alia engaged in the
business of printing of newspapers and providing space for advertisements
in newspapers. The Appellant obtained registration with jurisdictional
Service Tax authority inter alia for providing services under taxable
category of 'Sale of Space or Time for Advertising Services' with effect
from 1st May, 2006.
4. It is stated that the Appellant provided 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 Appellant states 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 Petitioner "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."
5. The appellant filed a refund application on 25th September, 2007 before
the Assistant Commissioner of Service Tax, Division-I, New Delhi
('Assistant Commissioner') 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 dated 28th July, 2008, 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 CE Act. In other
words, according to the Assistant Commissioner, the aforementioned refund
claim for Rs. 4,23,454/- pertained to period prior to 25th September, 2006.
6. The appeal filed by the Appellant against the above order was dismissed
by the Commissioner (Appeals) by an order dated 10th November 2009.
Thereafter the Appellant went in appeal before the CESTAT, which by the
impugned order dated 10th January 2017, dismissed the appeal.
7. Mr. Ashok Kumar Dhingra, learned counsel for the Appellant, has placed
reliance, inter alia, on the judgments of this Court in Hind Agro Industries
Limited v. Commissioner of Customs 2008 (221) ELT 335 (Del) and Alar
Impex Private Limited v. Commissioner of Central Excise, Delhi-I 2016
(41) S.T.R. 407 (Del) to urge that the CESTAT was in error in holding that
the Appellant's claim for refund was barred by limitation. According to him
since the service tax was not payable twice, the provision of Section 11B (1)
of the CE Act would not apply to the claim for refund of the excess service
tax paid.
8. Mr. Sanjeev Narula, learned Senior Standing counsel for the Respondents,
on the other hand, has placed reliance on the decisions in Kochar Sung-Up
Acrylic Limited v. CEGAT 2004 (175) ELT 81 (P&H) and Mafatlal
Industries Limited v. Union of India 1997 (89) ELT 247 (SC).
9. In both, Hind Agro Industries Limited (supra) and Alar Impex Private
Limited (supra), the question examined was whether the levy in question,
which was cess in one case (Hind Agro) and service tax in the other (Alar
Impex), was at all payable in the first instance. As far as the levy of cess is
concerned, this Court in Hind Agro Industries Limited (supra) held that it
was outside the purview of 'customs duty' under Section 27 of the Customs
Act, 1962. In Alar Impex Private Limited (supra), this Court found that the
CESTAT had failed to satisfy itself that the "services rendered by the
appellant were, on facts, amenable to service tax". Where the services
rendered were not amenable to service tax, the question of applying for
refund under Section 11B of the CE Act would not arise.
10. Here, however, the facts are different. 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 CE 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".
11. In considering the application for refund by the Appellant filed on 25th
September 2007, the Assistant Commissioner ascertained which part of the
claim pertained to the period prior to 26th September, 2006. In fact, the
Appellant itself set out, in a table in its refund application, the dates on
which payment of service tax was made by it. What has been rejected by the
Assistant Commissioner is the claim for refund of service tax paid by the
Appellant prior to 25th September, 2006. Such claim was clearly barred by
limitation in terms of Section 11B (1) of the CE Act. Since the payment of
service tax during the said period was not under protest, the Appellant was
unable to take advantage of the second proviso under Section 11B (1) of the
CE Act which states that the limitation of one year will not apply where any
duty and interest has been paid under protest.
12. That being the position, 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
question framed is, accordingly, answered in the negative, i.e. in favour of
the Department and against the Appellant.
13. The appeal is dismissed with no orders as to costs.
S. MURALIDHAR, J.
PRATHIBA M. SINGH, J.
AUGUST 08, 2017/j
