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2017 (6) TMI 217 - AT - Service TaxRefund claim - nature of amount deposited at the instance of department - period of limitation - scope of SCN - amount deposited to be deemed as under protest or not - Held that: - a new case cannot be made out at the appellate level and the Department cannot travel beyond the SCN - the impugned order is not sustainable in law firstly on the ground that the impugned order has traveled beyond the SCN. In the SCN 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 whereas in the impugned order, the learned Commissioner (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.
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