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2016 (12) TMI 1784 - HC - Service TaxRefund of service tax - duty paid under protest - rejection on the ground of time limitation - Section 11B of the Central Excise Act, 1944 - petitioners argue that the amounts were not voluntarily paid but rather under protest - HELD THAT:- Section 11B clarifies that the one year period has been prescribed as the time limit for claiming refund in respect of the duty and interest paid on such duty for which refund is claimed. The second proviso states that if the duty and interest is paid under protest, the one year period will not apply. In this case, the Adjudicating Authority went on to hold that since the refund claim was made after the adjudication is complete, it was time barred. This Court is of the opinion that the facts of the present case clearly point to the petitioner’s claim falling within the second proviso to Section 11B of the Act. Concededly, even during the pendency of the adjudication, the petitioner’s letter indicating deposits were made (in unequivocal terms) under protest. The adjudication order took note of the earlier statement, which was retracted at the beginning of the adjudication proceedings and found that the retraction was genuine -The adjudication order is an exhaustive one and categorically rules that against all transactions which were stated to be taxed could not have fallen within the ambit of Service Tax. In the present case, the entire proceedings seeking recovery of amounts were without jurisdiction and the amounts, which were collected under ostensible authority of law, could not have been collected because the transactions were not subject to levy at all. In these circumstances, the collection of duties was per se illegal. The concerned authorities are hereby directed to process the petitioner’s refund claim and ensure that the amounts are remitted to it with applicable interest - petition allowed.
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