TMI Blog2016 (6) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said letter. There is no mention of the period for which the refund of service tax is being sought. Merely on requesting the Superintendent to refund the service tax, without even quantifying the same and without even referring to the period during which the same was deposited, especially when they continued to pay in future awaiting the decision of the Hon’ble Allahabad High Court cannot be considered to be a refund application for the payments already made by them in the past. As such, we fully agree with the Revenue that the said letter cannot be considered to be a refund application. It is well settled law that the Authorities working under the Act are bound by the provisions of the Act and no general limitation period can be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him. - Revenue’s appeal is partially allowed and partially remanded - Service Tax Appeal No. 1267 of 2011 - Final Order No. 51822/2016 - Dated:- 20-5-2016 - Ms. Archana Wadhwa, Member (Judicial) and Shri B. Ravichandran, Member (Technical) Shri K. Poddar, Authorized Representative (DR) for the Appellant. Shri A.K. Batra, C.A. for the Respondent ORDER Being aggrieved with the order passed by Commissioner (Appeals) Revenue has filed the present appeal. 2. After hearing both the sides, duly represented by Shri K. Poddar, learned DR for the Revenue and Shri A.K. Batra, learned C.A. for the respondent, we find that as per facts on record the respondents during the relevant period were registered with Service Tax D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey were issued a show cause notice dated 17/6/2009 proposing to reject the refund claim of ₹ 72,21,075/- pertaining to the period 01/4/2006 to 23/4/2007 as barred by limitation. As regards the claim for the period post 24/4/2007, the refund was sought to be denied on the ground that they were registered with the Department under Construction of Industrial and Commercial Services and not for Construction of industrial and Commercial Services and not for Construction of Residential Complex Services and there is no documentary evidence on record to show that they were depositing the service tax under the Construction of Residential Services. 5. The said show cause notice stands adjudicated by the Assistant Commissioner, who vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance to find out as to whether the same can be construed as refund application or not. For better appreciation of the contents of the said letter, we reproduce the same : - To, The Superintendent, Service Tax Division 1, Delhi Subject : Payment of Service Tax in protest as per the judgment dated 23/03/2007 in Revised Civil Misc. Writ Petition No. 997 of 2006 decided by Allahabad High Court in case of ASSOTECH REALITY PVT. LTD. VS. STATE OF U.P. Sir, We are paying Service Tax as a builder in lieu of decision in K. Raheja Development Corporation case. The Allahabad High Court has turned down the said judgment in Revised Civil Misc. Writ Petition No. 997 of 2006 decided on 23/03/2007 in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Assotech Reality Pvt. Ltd. vs. State of U.P. However, they continued to pay the service tax after lodging the said protest. In fact last line of first paragraph itself reads that However, we are depositing the Service Tax in protest with the condition that in case it is decided in favour of builder, the same would be refunded to us . This line reflects upon the fact that the respondent continued to pay the service tax under protest with liberty to claim the refund of the same in future, in case the disputed issue is settled in their favour. Further in the last line of the said letter, its stands stated by the Assessee that In view of the position explained above, you are requested to look into the matter and refund the ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the service tax, without even quantifying the same and without even referring to the period during which the same was deposited, especially when they continued to pay in future awaiting the decision of the Hon ble Allahabad High Court cannot be considered to be a refund application for the payments already made by them in the past. As such, we fully agree with the Revenue that the said letter cannot be considered to be a refund application. It is well settled law that the Authorities working under the Act are bound by the provisions of the Act and no general limitation period can be adopted for grant of refund even in those cases where it was not required to be paid. The provisions of Section 11B of the Central Excise Act, 1944 lays down ..... X X X X Extracts X X X X X X X X Extracts X X X X
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