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2019 (11) TMI 57 - HC - Service TaxRefund claim - time limitation - Section 11B of Central Excise Act - doctrine of merger - Whether the provisions of Section 11B(5)(ec) or Section 11B(5)(f) of the Central Excise Act, 1944 are applicable in case where the Order-in- Original is challenged inasmuch as the levy of penalty and such levy of penalty is set aside by the Appellate Authority? - Whether under the facts and circumstances of the case, the Order-in-Original passed by the Respondent adjudicating authority merges with the Order-In-Appeal passed by the Commissioner of Central Excise(Appeals)? HELD THAT:- The actual liability would be determined subsequent to the order of the Appellate Authority. On the liability created towards the penalty, the amount in balance deposited by the assessee would have been appropriated/adjusted. No question of refund would have arisen if no appeal was preferred by the assessee though relating to the penalty aspect. The actual liability is crystallized subsequent to the order passed by the Appellate Authority. The doctrine of merger being applicable to the case on hand to determine the actual liability and to raise the demand, the relevant date in terms of Section 11B (1) of the Act would be 03.03.2010, the date of passing of the order by the Appellate Authority. The view of the respondent-revenue in denying the refund claimed by the appellant is unjustifiable and hit by Article 265 of the Constitution of India. The substantial questions of law answered in favour of the assessee and against the revenue.
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