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2021 (9) TMI 1098 - CESTAT BANGALORERefund of service tax paid under protest - provisional assessment or not - applicability of time limitation - short payment of duty and excess claim of refund - HELD THAT:- The refund of any excess duty paid by any person is determined under Section 11B of the Central Excise Act. Section 11B prescribes a period of limitation of one year, however the said period of limitation is not applicable if the assessment is provisional. In the instant case, the claim of the respondent is that the assessment should have been deemed to be provisional as the final price was not determined at the time of provision of service and they had specially indicated in export/import applications that the service tax was paid under protest. The assessment cannot automatically turn provisional in absence following due procedures as prescribed under Rule 6 of Service Tax Rules. Since the assessment cannot be termed provisional in the instant case, the refund of ₹ 1,52,54,149/- claimed by the respondent is clearly barred by limitation - the order of Commissioner(Appeals) in respect of the said amount is therefore set aside. Allegation that the total amount recovered by the appellant at the material time was much higher than that paid by the respondent - HELD THAT:- The issue regarding short payment of duty was also raised by corrigendum dt. 29/08/2007 issued by the Assistant Commissioner. As a result, it cannot be said that the show-cause notice did not raise any ground other than unjust enrichment. It is seen that the Order-in-Appeal did not examine the issue regarding the short payment of service tax during the month of February and March 2006 and has ignored the corrigendum to the show cause notice issued by the jurisdictional Assistant Commissioner - thus, the order of Commissioner(Appeals) is set aside on this count as well and the matter is remanded to the Commissioner(Appeals) for fresh adjudication after examining the corrigendum issued to the show-cause notice. The order of Commissioner(Appeals) is set aside in respect of the refund claim pertaining to ₹ 60 lakhs and the matter is remanded back to the Commissioner(Appeals) for examining the issue afresh and pass orders - appeal allowed by way of refund.
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