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2023 (10) TMI 881 - AT - Service TaxRefund of amount paid under protest - Reversal of cenvat credit - Part of the demand was confirmed - amount under section 35F of Central Excise Act, 1944 - period of limitation. Whether the amount has rightly been denied to be an amount under section 35F of Central Excise Act, 1944 wrongly (CEA)? - HELD THAT:- Hon’ble Apex Court in the case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT] has held that amount paid during pendency of investigation/adjudication shall be treated as the amount paid under protest akin to the amount of pre-deposit under section 35F (CEA) - it is observed that there is no denial to the fact that Rs.8,49,545/- was deposited under section 35F in addition to impugned amount has already been refunded to the appellant. Hence irrespective the amount in question being the amount paid under protest has acquired the character of amount pre-deposit, but the said amount cannot be called as amount deposited under section 35F. Hence the question of applicability of section 35FF does not arise. Whether the period of limitation has wrongly been applied? - HELD THAT:- Once it is and held that the refund is under section 11B of the Act, the time limit of one year is applicable to the said refund. The relevant date in the given circumstance is held to be the date of Order-in-Original dated 23.10.2020. The refund claim was filed on 03.09.2021. It becomes clear that the refund claim was well within the limit prescribed by the Statute. Hence, the refund claim has wrongly been barred by limitation. Admittedly an amount of Rs.5,25,141/- alongwith amount of interest (Rs.2,45,515/-) was already deposited with the department. After appropriating the same to the extent of demand confirmed, the balance amount of Rs.4,22,832/- plus Rs.2,45,515/- i.e.Rs.6,65,347/-, is to be refunded. The department cannot retain the same for want of any authority with them to retain. Hence they are held liable to refund the same alongwith the interest @ 6% from the date of order dated 23.10.2020 till the date of payment thereof. Appeal allowed.
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