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2013 (4) TMI 352 - CESTAT CHENNAIRefund claim rejected as time bar - Service provider, namely, M/s.Aban Offshore Ltd., has paid the impugned tax amount under the category of Mining Service without disputing the same - Held that:- As it is settled law that unless the assessment has been disputed, no refund can be sanctioned as decided in M/s.Flock India (2000 (8) TMI 88 - SUPREME COURT OF INDIA) and M/s.Priya Blue (2004 (9) TMI 105 - SUPREME COURT OF INDIA). Prima facie, in this case, the assessments have not been challenged by the service provider who is the tax payer and, therefore, it cannot be said that the respondents have a prima facie case in their favour for grant of refund of the impugned amount. Also the respondents have filed the refund claim under Section 11 B of the Central Excise Act as made applicable in respect of service tax. The original authority and the lower appellate authority being creatures of the statute, prima facie are required to follow the statutory provisions while dealing with a refund claim filed under the same statute under Section 11B. Therefore it appears that the order passed by the lower appellate authority disregarding the provisions relating to limitation and unjust enrichment etc. provided under the said Section 11 B may not be legal and proper and beyond his jurisdiction. The balance of convenience lies in staying operation of the impugned order passed by the lower appellate authority allowing liberty to both parties to the dispute to file an application for early hearing considering the high amounts involved in this case.
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