Archana Wadhwa ORDER
Archana Wadhwa, Member (J)
1. The application is for Restoration of the appeal dismissed for non-prosecution vide Final Order No. 70369 of 2018.
Learned Advocate submits that appearance could not be caused on the said date as he was having some personal difficulty and tried to send fax for adjournment, which was not received by the Registry.
2. Inasmuch as in the order itself opportunity has been given to the appellant to apply for restoration, I recall the said final order and restore the appeal to its original number and proceed to decide the appeal itself inasmuch as the short issue is involved.
3. The appellants are engaged in the manufacture and export of Leather Footwear. They were paying service tax on 'reverse charge basis', in respect of services obtained by them from foreign service provider. The period involved in the present appeal is prior to 18.04.2006.
4. Subsequently, in terms of the Hon'ble Bombay High Court's decision in the case of Indian National Shipowners' Association vs. Union of India reported at MANU/MH/0213/2009 : 2009 (14) STR 289 (Bom.) dated 23.03.2009, no service tax was payable on 'reverse charge basis' for the period prior to 18.04.2006, when the provisions of Section 66A were introduced in the Statute Book. Accordingly, the appellant filed a refund claims amounting to Rs. 83,142/- alongwith interest, which were originally rejected by the Adjudicating Authority on merits as also on limitation. On appeal Commissioner (Appeals) held in favour of the appellant on merits, in terms of the law declared by the Hon'ble Bombay High Court but rejected the claim on the point of limitation.
5. Accordingly, the only issue to be decided in the present appeal is as to whether the refund claim filed by the appellant on 24.06.2009 for the period 04.05.2006 and 19.07.2007 would be barred by limitation or not. The learned Advocate submits that Bombay High Court's decision in the case of Indian National Shipowners' Association (supra) was pronounced on 23.03.2009 and as such the refund claims filed by the appellant on 24.06.2009 are required to be held as having been filed within the limitation period, by treating the date of Bombay High Court's decision as the relevant dated. He also submits that inasmuch as the service tax was not payable by the appellant, the exchequer cannot retain the same illegally and the same needs to be refunded to the appellant, without raising the issue of limitation. He also draws my attention to Tribunal's decision in the case of Monnet International Ltd. vs. Commissioner of Central Excise, New Delhi reported at MANU/CE/0155/2017 : 2017 (3) GSTL 380 (Tri.- Del.) wherein the refunds filed beyond the period of limitation as provided under Section 11B of the Central Excise Act, 1944 were allowed by observing that at the relevant time there was no authority of law to collect service tax on the activity carried out by the assessee and as such retention of the unauthorized collected amount by the Department is not permissible.
6. After hearing learned AR and after going through the impugned order, I find that there is no dispute on facts. Admittedly, during the relevant period the appellant had discharged its tax liability on reverse charge basis in respect of services received from a foreign person. Neither any protest was alleged by the appellant nor the assessments were provisional. The refund claims stand filed on 24.06.2009 i.e., after the normal period of limitation under Section 11B. Admittedly, the refunds are required to be adjudicated in terms of the provisions of Section