TMI Blog2017 (6) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner (Appeals) has partially allowed the refund claim and partially disallowed the same. Since the litigation was going on therefore the amount deposited by the appellant will be deemed to be under protest and no limitation as prescribed under Section 11B will be applicable. Also, the amount deposited by the assessee to the Revenue has to be treated as deposit at the hands of the Government and hence the limitation to claim refund under provisions of Section 11B is not applicable. Appellant is entitled to refund - appellant is also entitled to interest after the expiry of three months from the date of filing the refund application which was filed on 16.05.2012 - decided in favor of appellant. - ST/26472/2013-SM - Final Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid the service tax amounting to ₹ 1,47,431/- (Rupees One Lakh Forty Seven Thousand Four Hundred and Thirty One only) along with interest of ₹ 12,526/- (Rupees Twelve Thousand Five Hundred and Twenty Six only) for the services rendered during the period July 2003 to September 2004 under Business Auxiliary Service. Thereafter a show-cause notice dated 10.08.2005 requiring the appellant to pay ₹ 1,99,373/- (Rupees One Lakh Ninety Nine Thousand Three Hundred and Seventy Three only) for the said period in relation to the service rendered to MESCOM under contract under the category of Practicing Chartered Accountant was demanded. Thereafter after following the due procedure, the adjudicating authority vide Order-in-Original da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant in pursuant to the judgment dated 18.04.2011 passed by the High Court of Karnataka filed the refund application before the Assistant Commissioner asking for the refund of ₹ 6,04,779/- (Rupees Six Lakhs Four Thousand Seven Hundred and Seventy Nine only) [Service Tax ₹ 1,47,431/- (Rupees One Lakh Forty Seven Thousand Four Hundred and Thirty One only) and interest of ₹ 12,526/- (Rupees Twelve Thousand Five Hundred and Twenty Six only)] for the period July 2003 to September 2004, service tax with education cess of ₹ 4,08,749/- (Rupees Four Lakhs Eight Thousand Seven Hundred and Forty Nine only) with interest of ₹ 27,895/- (Rupees Twenty Seven Thousand Eight Hundred and Ninety Five only) paid for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by the Supreme Court in the matter of CCE Vs. ITC 2005 (179) E.L.T. 15 (SC) holding that refund of all pre-deposits is to be refunded @ interest of 12%. He further submitted that even after concurrent finding by both the Commissioner (Appeals) as well as CESTAT, the Department dragged the appellants to the High Court by challenging the said order. The CBEC has also accepted the Final Order and decided not to file appeal before Apex Court. He further submitted that the Commissioner (Appeals) at para 7 of his order has erred in returning a finding that for the periods not covered by the demand and appeal proceedings, the legal provision of consequential refund will not apply. He further submitted that the learned Commissioner (Appeals) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32 (SC) c) CCE Vs. Sunrise Structural Engg (P) Ltd. 2002 (148) E.L.T. 503 (T). Maintained by Apex Court in Collector Vs. Sunrise Structural Engg (P) Ltd. 2003 (154) E.L.T. A241 (SC) d) SACI Allied Products Ltd. Vs. CCE 2005 (183) E.L.T. 225 (S.C) e) Reckitt Coleman of India Ltd. Vs. CCE, 1996 (88) E.L.T. 641 (SC) 3.1. He further relied upon the decision in the case of Bharat Auto Cars Pvt. Ltd. Vs. CCE 2015-TIOL-2832-CESTAT-BANG. wherein it was held that when the Revenue has already paid refund for the same services for the two periods as the service tax was not chargeable, it was not understood why they had been insistent on separate written protest for each payment against the services which were not liable to tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of ₹ 12,747/- (Rupees Twelve Thousand Seven Hundred and Forty Seven only) on refund amount of ₹ 1,47,431/- (Rupees One Lakh Forty Seven Thousand Four Hundred and Thirty One only). 4. On the other hand the learned AR reiterated the findings in the impugned order. 5. After considering the submissions of both the parties and the perusal of the various decisions cited by the learned counsel for the appellant, I am of the view that the impugned order is not sustainable in law firstly on the ground that the impugned order has travelled beyond the show-cause notice. In the show-cause notice there was a proposal to reject the refund only on the ground that the entire refund claim filed by the appellant was barred by time wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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