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2012 (11) TMI 302 - CESTAT AHMEDABADDelay in appeal - refund of service tax as per notification No. 41/200-S.T. dated 6-10-2007 - excise v/s service tax - Held that:- Just because the refund claim has been filed before the Assistant Commissioner of Central Excise, it does not become the matter relating to Central Excise, thus unable to agree that sub-section (3) of Section 85 is only for service tax demands. Notification No. 41/2007-S.T. has been issued in exercise of powers vested under Section 93 of Finance Act, 1994 and therefore it cannot be said that notification is Centra1 Excise Notification. The refund has been claimed as per the provisions of this notification. The refund claim is related to service tax. Under these circumstances the provisions of Section 85 of Finance Act, 1994, would be applicable. And the Original Adjudicating Authority should have issued the preamble applicable to the service tax matters. Commissioner has calculated 90 days whereas Section 85 speaks of three months. Therefore, the calculation itself is made in an incorrect manner - the appeals are required to be remanded to the Commissioner (Appeals) to consider the matters afresh treating the matters as relating to Service Tax - in favour of assessee by way of remand.
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