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2021 (2) TMI 772 - Commissioner - Service TaxRefund of excess paid service tax - time limitation - date of deposit of tax vis-å-vis date of filing of refund claim in terms of Section 11B of the Central Excise Act, 1994 - HELD THAT:- On reading of Section 11B of Central Excise Act 1944, It is found that any person claiming refund must make an application for refund before the expiry of one year from the date of payment of tax and not from any other date. The clock for one year would start ticking from the date on which the appellant has paid the tax. Thus plain reading of the provisions of section 11B; it is found that the claim is not time barred as the appellant had filed refund claim within one year from the date of payment of tax. As per decision of the tribunal in the case of DURALINE INDIA PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, GOA [2008 (9) TMI 295 - CESTAT MUMBAI] the date of refund claim shall be reckoned from the date when the refund application was originally filed, not from the date when defects pointed out by the department and were cured by the appellant. Thus, the amount excess paid in May, 2010 is in the nature of Revenue deposit. Further, there is no limitation for refund of Revenue deposit. In this view of the matter it is held that the refund claim is not barred by limitation. It is also found that the tax was paid through CENVAT credit account and not through cash challans. The excess amount of duty liable to be re-credited in the CENVAT credit Account as the Appellant cannot be given liberty to encash accumulated CENVAT credit bypassing Rule 5 of CENVAT Credit Rules, 2004. Accordingly, I direct the Adjudicating Authority to grant the refund of the said amount of ₹ 9,92,929/- and to be re-credited in the CENVAT credit Account. Appeal allowed - decided in favor of appellant.
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