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M/s. Bharat Sanchar Nigam Ltd The General Manager, Telecom Dist. Versus Commissioner of Central Excise, Customs and Service Tax Calicut

2017 (10) TMI 558 - CESTAT BANGALORE

Refund claim - rejection on the ground of limitation - The appellant had filed refund claim for this amount on 30.6.2008. The lower authorities have held that the refund is in respect of excess tax paid during the period March 2005 to May 2005, hence it is hit by limitation - Held that: - It can be seen that the adjudicating authority has disposed of the proceedings initiated by the show-cause notice which was demanding tax liability from the appellant. During the adjudication proceedings, appel .....

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belatedly. It is very clear from the adjudication order that the tax liability of the appellant has been finalized by the authorities on 11.4.2008 and having filed the refund claim on 30.6.2008 to my mind it is within three months from the date of adjudication - refund is rightly filed within time as provided under Section 11B of the Central Excise Act, 1944 which is made applicable to the refunds under Finance Act, 1994. - Reliance placed in the case of CCE, Thane-I vs. Clariant (I) Ltd. [ .....

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n This appeal is directed against the Order-in-Appeal Oder-in-Appeal No. 650/2014-ST dated 27/11/2014 passed by Commissioner of Central Excise, Customs and Service Tax, Cochin (Appeal). 2. Heard both sides and perused the records. 3. The issue involved in this appeal is rejection of refund claim of ₹ 4,66,091/- by the lower authorities on the ground of limitation. 4. The appellant had filed refund claim for this amount on 30.6.2008. While filing the refund claim, he had given the reason fo .....

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The said show-cause notice also sought to demand interest and also to impose penalties. The said show-cause notice was adjudicated by the Commissioner of Central Excise and Customs, Calicut Commissionerate and by Order-in-Original No.2/2008 dated 11.4.2008, the adjudicating authority disposed of the show-cause notice by confirming the demand of ₹ 3,51,936/- as Education Cess holding that during the pendency of the proceedings appellant has paid excess amount of ₹ 4,66,091/-. The said .....

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tant Commissioner, Kannur Division vide Order-in-original No.1/2007-ST (P) dated 15.3.2007 and the short payment of education cess amounting to ₹ 3,452/- pointed out has been paid by the assessee. With regard to the period from October 2004 to March 2005 and for the month of May 2005, the records of the assessee were verified to check the correctness of amount indicated in the tables furnished by them during the hearing. It is seen that the figures are correct and consequently, the service .....

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tments in their CENVAT credit account which has been verified and found to be in order. As regards Education Cess, there is short-payment of ₹ 3,51,936/-. M/s. BSNL have paid Service Tax in excess and for this reason, I find that there exists no intent on their part of willfully evade payment of Education Cess. As such a penalty under Section 76 is not warranted in this case. Accordingly I pass the following order. ORDER (i) I drop all proceedings with respect to the demand of Service Tax. .....

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above reproduced findings that the adjudicating authority has disposed of the proceedings initiated by the show-cause notice which was demanding tax liability from the appellant. During the adjudication proceedings, appellant had discharged various amounts through TR6 and CENVAT account and there has been an excess payment of the service tax liability, which is correctly claimed by the appellant on 30.6.2008 by filing a refund application. When the adjudicating authority has himself held that ta .....

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refund is rightly filed within time as provided under Section 11B of the Central Excise Act, 1944 which is made applicable to the refunds under Finance Act, 1994. 5.1 I also find that the learned counsel s reliance on the judgment of the Hon ble High Court of Bombay in the case of CCE, Thane-I vs. Clariant (I) Ltd.: 2015 (319) STR 646 (Bom.) is correct and ratio of the said decision of the High Court is in paragraph 9 which I reproduce below: 9. With the assistance of the learned counsel appeari .....

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venue therefore proceeded to raise a demand and issued four show cause notices. A reading of the show cause notices would reveal as to how the revenue proceeded to demand the sums set out therein and purported to adjust the payment already made by the assessee. Thus, the liability of the assessee was not crystallized according to the Revenue until this show cause cum demand notice was adjudicated. If that was admittedly issued and the show cause cum demand notice was required to be adjudicated i .....

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20 Feb, 2001 was well within time. It is not the argument of Mr. Rao that only if the refund of duty made under protest a refund of duty can be sought. Even if it voluntarily paid refund can be sought provided, the application is made in terms of the second Proviso to Section 11B (1) of the Act. If the computation of the tax by assessee in this case had been accepted and in 1997 itself, there was no question of claiming refund. Since the revenue did not accept this payment as clearance of the li .....

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