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2019 (6) TMI 634

cating authority and Commissioner (appeals) to justify non-applicability of doctrine of unjust enrichment to the appellant but submission of CA Certificate and Balance Sheet of company during hearing of the appeal, which is not objected by the Respondent Department, the same can be taken as additional evidence as per rule 23 to CESTATE procedure Rules 1982 - Cursory reading of the documentary evidence would reveal that incidence of tax has not been passed on by the Appellant to any other person. Refund allowed - appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 87705 of 2018 - FINAL ORDER NO. A/86093/2019 - 13-6-2019 - DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Ms. Tejal Patil, Advocate for the Appellant Shri Onil Shiv .....

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ord, it is noticed that the grounds of rejection of refund were primarily three: First; Commissioner (Appeals) had held that ₹ 3,11,119/- paid by the Appellant without protest in the year 2007 - 2008 was in dispute as service tax amount for which, under section 11B of Central Excise Act 1944 limitation period for refund was to be treated as one year from the date of payment and refund claim made on 10-6-2016, by bringing section 11B sub-section 5 explanation B(EC) providing one year period for allowing refund claim from the date of order of the Appellate Tribunal, was not acceptable; Second, payment of service tax was established through filing of TRC Challan for which Appellant cannot claim the same amount as deposit and not service .....

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e original record transmitted by the Registry of the Tribunal. It is true that the payment of duty was made by the assessee and that was in terms of the computation made by it. It was debited in the revenue account in November and December of 1997. It is true that this payment was not made under protest. Payment was made voluntarily but the revenue did not accept it as a clearance of duty liability and in accordance with law. The revenue 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 crystall .....

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e Act, 1944, the order passed by him resulted in dropping of the proceedings and the demand. Therefore, once the show cause notice was dropped the assessee in this case became entitled to seek refund. That such an application was maintainable and could have been granted, provided it was lodged within the period of limitation and as prevalent in terms of the applicable legal provision. At the relevant time, the period of limitation was six months. The period of six months was not reckoned in this case from the payment but from the date of adjudication order. If that is how the Tribunal proceeded and interfered with the order of the Commissioner (Appeals) which was assailed before it by the assessee, then, we do not see how the reversal of th .....

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other person. This being so, in carrying forward the judicial precedent set by this Tribunal in the decision cite above in CCE v. Clariant (I) Ltd., that such refund is admissible as a consequence of judgement/order of Appellate Tribunal even if the payment was made voluntarily and without any protest, the following order is passed. ORDER 6. The appeal is allowed and the order passed by the Commissioner (Appeals), GST & CE, Nashik-422008 in Appeal No. NS/EXCUS/000/ APPL/212/17-18 dated 20-02-2018 is hereby set aside. The appellant is entitled to get refund of ₹ 3,11,119/- with applicable interest and the Respondent Department is directed to pay the same within three (3) months of communication of this order. (Order pronounced in t .....

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