9911796707
TMI Blog2015 (1) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... waiving the condition of pre-deposit. 3. The brief fact of the case are that appellants are engaged in manufacture of Biscuits falling under chapter 1905 of Central Excise Tariff Act, 1985. They have been availing services of goods transport agency. Service tax on goods transport agency services being payable under reverse charge, appellants obtained Service Tax Registration and paid service tax thereon. During the period May 2007 to March 2008, appellants paid service tax of Rs. 2746973/- against actual liability of Rs. 1363228/- resulting in excess payment of Rs. 1383745/-. Therefore appellants filed a refund claim on 02-01-2009 claiming refund of excess service tax paid Rs. 952164/- Vide Order-in-Original No. 01/ST/Refund/ 2009-10 dt. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been placed on :- (i) Circular No. 423/56/98-CX dt. 22-09-1998. (ii) Gillooram Gouri Shanker Vs CCE reported in 2001 (137) ELT 330. (iii) Rosemount (I) Ltd Vs CCE reported in 1998 (99) ELT 502. He further argued that in view of provision of Rule 6 of Service Tax Rules, 1994, service tax excess paid (during May 2007 to November 2007) could have been adjusted for payment of service tax for the subsequent period. In this regard, he referred to the judgment in the case of Gujarat NRE Coke Ltd Vs CCE reported in 2012 (27) STR 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrongly granted refund of Rs. 952164/- resulting in excess refund of Rs. 564057/-. He therefore supported the impugned order and argued that the Commissioner had correctly ordered for recovery of amounts wrongly refunded to the appellants. 8. Heard both sides and gone through the records. 9. I find, it is un-disputed that during the period May 2007 to March 2008, appellants had excess paid service tax amounting to Rs. 1383745/-. Against the aforesaid excess payment, the adjudicating authority allowed refund of Rs. 952164/- and ordered for adjustment of balance amount of Rs. 431581/- in subsequent payments. The issue to be decided are:- (a) Whether the learned Commissioner could have ordered for recovery of the amount refunded without iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Act, 1944. It also refers to the opinion of Law Ministry holding that the demand for recovery of erroneous refund has to be made under section 11A of Central Excise Act, 1944 within the limitation period. Similar view has been taken by this Tribunal in the case of Motor Industries Company Ltd Vs CCE reported in 1999 (113) ELT 697; in the case of Gillooram Gouri Shanker Vs CCE reported in 2001 (137) ELT 330 and also in the case of Rosemount (I) Ltd Vs CCE reported in 1998 (99) ELT 502. I find that in the present case, show cause notice for recovery of erroneous refund under section 73 (1) has not been issued by the department. The Board Circular and the decision of Hon'ble Supreme Court as well as this Tribunals judgment are squarely ..... X X X X Extracts X X X X X X X X Extracts X X X X
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