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M/s Central Warehousing Corporation Versus Commissioner of Central Excise, Mumbai

Levy of service tax - auction proceeds of abandoned goods - time limitation - Held that: - the limitation needs to be counted from the date of the decision of the appellate Tribunal in terms of Section 11B of the Central Excise Act, 1944 made applicable to the Finance Act, 1994 by Section 83 thereof. However, it is seen that the matter before Tribunal related to demand for the period 2004 to 2009 and, therefore, only the said period can be considered for the purpose of refund. - Unjust enric .....

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other person, the said amount would have to be transferred to the Consumer Welfare Fund. - Appeal disposed off - decided partly in favor of appellant. - Appeal No. ST/526/12 - Dated:- 27-7-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri Raymond C George, Advocate for Appellant Shri M.P. Damle, AC (AR) for Respondent ORDER Per: Raju This appeal has been filed by M/s Central Warehousing Corporation against denial of refund claim. 2. The brief facts of the case .....

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d the appellants voluntarily paid an amount of ₹ 54,48,401/- as Service Tax for the period 16.8.2002 to 21.6.2006. Thereafter the appellants started paying Service Tax as and when the abandoned goods were auctioned by them under the head of Storage and Warehousing Services . A show-cause notice was issued to the appellant seeking to recover duty for the period April, 2004 to March, 2009 in the year 2009. The said demand show-cause notice was dropped by Commissioner vide Order-in-Original d .....

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rder, the appellants are in appeal before Tribunal. 3. Learned Counsel for the appellants argued that the amount paid during investigation is deemed to have been paid under protest. It was argued that payment cannot be considered as voluntary payment as the appellant had contested the tax liability and ultimately an order was passed in favour of the appellant. It was argued that despite the fact that the appellant had paid Service Tax for the period 2002-06 voluntarily and even for the period af .....

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Court in the case of Mafatlal Industries Ltd. 1997 (89) ELT 247 (SC) and decision of the Tribunal in the case of Laxmi Board & Paper Mills Pvt. Ltd. 2007 (208) ELT 384 (Tri-Mum) to assert that payment made during the investigation period are payments made under protest and the limitation does not apply to such deposits. 3.1 Learned Counsel argued that limitation under Section 11B is not applicable in this case when the tax itself was ab initio not leviable as has been held by the Commissione .....

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ds have been settled by the Tribunal in the appellant s favour vide Order No. A/2043/15/STB dated 15.7.2015. 5.1 Since the issue regarding leviability of Service Tax is finally settled, now the only issue is left to be examined the issue of limitation and unjust enrichment. 5.2 The impugned order invokes the limitation prescribed under Section 11B and rejected major part of the refund claim as barred by limitation. The Commissioner has observed as follows: - Refund claim for 1,27,59,926/- was fi .....

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as voluntary. The Order-in-Original passed by the Commissioner Central Excise, Raigad does not fall under the category of a judgment, decree, order or direction of Appellate Authority, Appellate Tribunal or any court. Hence date of order cannot be treated as relevant date. The relevant date will be the date of payment of Service Tax, Payment of Service Tax made prior to 10.03.2010 is hit by time bar. It was held in a catena of Judgments that the authorities functioning under an Act is bound by i .....

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r dropping the demand, the Tribunal vide aforementioned order has also upheld the setting aside of demand. In these circumstances, now there is a decision of appellate Tribunal and the limitation needs to be counted from the date of the decision of the appellate Tribunal in terms of Section 11B of the Central Excise Act, 1944 made applicable to the Finance Act, 1994 by Section 83 thereof. However, it is seen that the matter before Tribunal related to demand for the period 2004 to 2009 and, there .....

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