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2023 (1) TMI 741 - AT - Service TaxRejection of refund claim - hit by limitation of one year as prescribed under section 11 B of Central Excise Act, 1944 - HELD THAT:- The amount of Rs.19,34,552/- the refund whereof was claimed the entire amount irrespective it was above 7.5 % / 10% of Section 35 F of Central Excise Act but was not at all an amount of duty rather it was still an amount with the Department as a deposit made by the appellant. The Department has no authority to retain the said amount. Such retention is otherwise specifically barred in terms of article 265 of Constitution of India. Commissioner (Appeal) has wrongly invoked section 11 B of Central Excise Act for applying the time limitation prescribed under the said section while rejecting the impugned refund claim - Hon’ble Apex Court in SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERSa [2006 (1) TMI 55 - SUPREME COURT] had clarified that no time limit can be made applicable for the refunds with respect to the amount of deposits/ pre-deposits. Appeal allowed.
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