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2015 (12) TMI 89 - CESTAT AHMEDABAD

2015 (12) TMI 89 - CESTAT AHMEDABAD - TMI - Claim of refund of excess service tax paid - Bar of limitation - Section 11B - Held that:- appellant had requested the department on 16.7.2010 in writing that the excess amount paid by them in April 2010 may be kept as deposit with the department to be adjusted against any future liability of service tax. Hence, we find force in the arguments of the learned Advocate that the amount should be treated as deposit only. As only the part of the amount could .....

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cable in the instant case. The impugned order of the Commissioner (Appeals) is therefore set-aside. - Decided in favour of assessee. - Appeal No. : ST/13808/2014 - ORDER No. A/11689/2015 - Dated:- 20-11-2015 - Mr. P.M. Saleem, Hon ble Member (Technical) For the Petitioner : Shri Dhaval K. Shah, Advocate For the Respondent: Shri S. Shukla, Authorised Representative ORDER Per : Mr. P.M. Saleem The appellant herein is a service tax assessee. The appellant paid an amount of ₹ 5,30,820/- in Apr .....

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against the service tax liability which had arisen at that point of time. Since they did not have any business further, they requested to return the balance amount of ₹ 1,57,642/- vide their letter dated 16.07.2012. A show cause notice was issued on 16.10.2012 to show cause why their claim for refund of the said amount should not be rejected. By the impugned Order-in-Original, the Dy. Commissioner, Service Tax sanctioned the refund claim. Revenue thereafter filed an appeal with the Commis .....

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liabilities. Therefore, there is no question of advance payment of tax in this matter and the amount was only a deposit. A part of the same was adjusted against the service tax liability which arose in March 2012, and against part of the excess amount there was no liability and Revenue has not raised any objection for the same and had not raised any demand. It is his submission that they would have utilised the remaining amount also for paying service tax if they had any business. However, sinc .....

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of Section 11B(2) will be applicable in this case and the appellant should have filed the refund claim within one year of payment of the said amount in April 2010. Hence, the refund claim is hit by limitation. 4. On consideration of the arguments of both sides and perusal of the records, it is observed that the appellant had requested the department on 16.7.2010 in writing that the excess amount paid by them in April 2010 may be kept as deposit with the department to be adjusted against any fut .....

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of cases have held to the contrary. For better appreciation, the relevant portions of a few decisions are reproduced below:- (a) This Bench of the Tribunal in the case of CCE, Ahmedabad vs. Shayona Enterprises [2008 (230) ELT 378 (Tri. Ahmd.)] held as follows:- 4. After hearing both the sides, I agree with the appellate authority that the deposits made during the investigations are in the nature of provisional deposits and if the said deposit is not appropriated towards any final demand of duty .....

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in question is not duty and the assessee is not seeking refund of duty so as to act beyond limitation provisions. (b) Further, in a recent case, the Hon ble High Court of Karnataka in the case of CCE, Bangalore vs. KVR Construction [2012 (26) STR 195 (Karnataka)], in Paras 19, 22 and 23 held as under:- 19. According to the appellant, the very fact that said amounts are paid as service tax under Finance Act, 1994 and also filing of an application in Form-R of the Central Excise Act would indicat .....

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endered by the petitioner was exempted from to payment of Service Tax. What one has to see is whether the amount paid by petitioner under mistaken notion was payable by the petitioner. Though under Finance Act, 1994 such service tax was payable by virtue of notification, they were not liable to pay, as there was exemption to pay such tax because of the nature of the institution for which they have made construction and rendered services. In other words, if the respondent had not paid those amoun .....

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ndent because of its circular dated 17-9-2004, the payment made by the respondent company would not partake the character of service tax liable to be paid by them. Therefore, mere payment made by the respondent will neither validate the nature of payment nor the nature of transaction. In other words, mere payment of amount would not make it a service tax payable by them. When once there is lack of authority to demand service tax from the respondent company, the department lacks authority to .....

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