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TMI Blog2019 (2) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of "Commercial Training or Coaching Services". As such service tax demand of around Rs. 5.26 crores was raised against them by way of the show cause notice, which was confirmed by the Original Adjudicating Authority. The order of the Commissioner was appealed against by the assessee before the Tribunal who vide its Final Order No.ST/A/56872-56885/2013-U(DB) dated 02.07.2013 set aside the same and held that the services provided by the appellant cannot be held to be taxable. The said order of the Tribunal was appealed against by the revenue before the Lucknow Bench of Hon'ble Allahabad High Court, who rejected the revenue's appeal. 2. However, it seems that subsequent to the confirmation of demand by the Original Adjudicating Authority i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present appeal by the appellant. 4. Arguing the matter, learned Chartered Accountant Shri Dharmendra Srivastava submits that they were initially not paying service tax, when a demand of show cause notice was issued to them raising demand of service tax for the period from 2004-05 to 2009-10. The said show cause notice was confirmed by the Commissioner and hence, thereafter they started paying service tax on the activity undertaken by them. The dispute in the earlier case reached the Tribunal and subsequently before the Hon'ble High Court of Allahabad. Both the authorities have held that the appellant is not liable to pay any tax. As such, he submits that the relevant date should be considered to be the Hon'ble High Court's order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, in the situation, I am of the view that the 'date of payment of duty' is the relevant date as per clause (f) of Explanation (B) of Section 11B (5) of the Central Excise Act, 1994. Thus, the refund claim of the appellant is premature as the demands pertaining to the period in question are sub-judice as also the decision of High Court has not reached finality being challenged before the Apex Court by the department. The refund claim has been filed after the expiry of one year from the relevant date i.e. date of payment of duty and the same is non-maintainable on limitation aspects as well." 6. Admittedly, the period before the Hon'ble High Court was from December, 2009 to October, 2012. The same was a demand case and the Hon'ble High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation for refund of tax paid under protest. The appellant having not adopted any of the such circumstances, the refund filed beyond the period of one year from the relevant date have to be governed by the provisions of Section 11 B of the Central Excise Act. The Hon'ble Supreme Court in the case of Porcelain Electrical Manufacturing Co. reported as 1998 (98) ELT 583 (SC) have held that the authorities working under the provisions of the Act are bound by the same and cannot relax the time limit provided under Section 11 B for the refund of erroneously paid duty. As such, we are of the view that the refund claimed by the assessee having no connection with the earlier demand of tax by revenue and the same having being filed beyond the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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