TMI Blog2015 (12) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... The issue, whether refund of such amount can be denied under the provisions of Section 11B, is no more res-integra as the Tribunal [2008 (2) TMI 760 - CESTAT, AHMEDABAD] and various High Courts [2012 (7) TMI 22 - KARNATAKA HIGH COURT ] in a number of cases have held to the contrary - time-limit prescribed under Section 11B is not applicable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on 16.07.2010 that the excess amount paid by them may be kept as deposit to be adjusted against the future service tax 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, since there was no business subsequently, they had requested the department to return the remaining amount which was only a deposit w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low:- (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 or penalty, the same cannot be called to be deposit of duty, in which case the limitation provisions will not come into action. Learned DR s reliance on the Honble Supreme Court s decision in the case of M/s. Miles India Ltd. [1987 (30) E.L.T. 641 (S.C.)] and the Tribunal s decision in the case of M/s. Bajaj Foods Limited - [2007 (209) E.L.T. 191 (Tri.-Ahm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 amounts, the authority could not have demanded the petitioner to make such payment. In other words, authority lacked authority to levy and collect such service tax. Incase, the department were to demand such payments, petitioner could have challenged it as unconstitutional and without authority of law. If we look at the converse, we find mere payment of amount, would not authorize the department to regularise such payment. When once the department had no authority to demand service tax from the respondent because of its circular dated 17-9-2004, the payment made by the respondent company would no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed by both the Appellate Authority and also the Tribunal. Aggrieved by the order of the Tribunal, revenue came up before the High Court. Their lordships of the Division Bench held that order of the Tribunal to allow the claim on the basis that amount paid by mistake cannot be termed as duty in the said case was justified and therefore applying the law laid down in the decision of Apex Court in the case of India Cements Ltd. v. Collector of Central Excise - 1989 (41) E.L.T. 358, dismissed the appeal. 23. Now we are faced with a similar situation where the claim of the respondent/assessee is on the ground that they have paid the amount by mistake and therefore they are entitled for the refund of the said amount. If we consider thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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