TMI Blog2011 (6) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from the records of the case it is clear that the appellant paid the duty for the period from April 2006 to December 2007 under protest on 07/05/2009 and filed the refund claim on 23/07/2009, which is well within the time limit prescribed. Therefore, the refund claim is not hit by limitation of time. - ST/262/2010 - A/215/11/SMB/C-IV - Dated:- 15-6-2011 - SHRI S.K. GAULE, J. Represented By: Shri H.S. Shirsat for the Appellant. Shri S.S. Katiyar for the Respondent. ORDER 1. The appellant filed this appeal against the order-in-appeal No.AGS (38)/21/2010, dated 23/02/2010, whereby the Commissioner (Appeals) upheld the order of the lower adjudicating authority rejecting the refund claim of the appellants. 2. Briefly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1994. The contention is that the audit department in the objection itself has conveyed that "It is therefore very much clear that the assessee is required to make payment of service tax first and then he may claim refund of the same. The assessee is following the same procedure in the case of GTA service where they are paying service tax on GTA, used for export and subsequently claiming refund of service tax paid on the said service". (ii) The contention is that the Commissioner (Appeals) in the case, found that the ground taken by the department for denying the refund claim from the condition of Notification No.41/07-ST, dated 06/10/2007 have not been fulfilled is not correct, therefore, they are entitled for the refund claim. In suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax. However, the contention raised by the appellant that, they have paid the service tax for the period from April 2006 to December 2007 under protest, which was otherwise time barred and therefore the department has no right to retain the same by denying the refund claim is not acceptable, as the tax liability on the services received during the period remains unchanged. The service tax which was legally due was not discharged in time and subsequently paying it under protest and then filing a refund claim does not absolve the appellant from their responsibilities. On the contrary the appellants were liable for penal action had the show-cause notice under Section 73 of Finance Act, 1994 been issued. It appears that, respondent had taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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