Order date – 15 September 2022

Facts – 

• The Appellant, Global Constructions, submitted a letter dated 02.09.2009 to the divisional Assistant Commissioner seeking refund of Rs.1,04,66,929/- on the ground that it had paid service tax on the services rendered by it, but such services do not fall within the purview of the service tax as per the CBEC Circular dated 29.01.2009.
• A show cause notice dated 15.12.2009 was issued proposing to reject the refund claim in terms of section 11B of the Central Excise Act, 1944 as made applicable by section 83 of the Finance Act, 1994 to Service Tax matters.
• The impugned order has partly sanctioned the refund and credited it to the consumer welfare fund and partly rejected on the ground of time bar.
• Aggrieved, the appellant filed an appeal.

Issue – 

• Whether the appellant is entitle for refund?

Order – 

• Tribunal observed that there is no provision, whatsoever, in section 11B by which one person who has paid the service tax and who has also passed on the burden to others, to file refund claim and request that the refund may be sanctioned and given to its customers.
• The scheme of the law is that once the applicant has passed on the burden of service tax to anybody, the amount has to be credited to the consumer welfare fund and not paid. 
• If the person who has borne the service tax wants to claim a refund, such person will have to file a refund claim. 
• Therefore, the very request of the appellant before the original authority and the Commissioner (Appeals) and before us that the service tax which it had paid and which it has undisputedly also collected from its customers must be refunded to its customers, is against the statutory provision of section 11B. The provisions of section 11B cannot be modified to cater to the requests of the appellant.
• Order upheld and appeal rejected.