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TMI Blog2016 (12) TMI 1784X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No.2. O R D E R CM Nos.28919, 28920, 28917 & 28918 of 2016 1. For the reasons stated in these applications, the same are allowed. Amended memo of parties are taken on record. The applications stand disposed off. W.P. (C) Nos. 4861/2015, 4973/2015, 5502/2015, 7175/2015 & 7837/2015 2. The petitioner claims a direction to the respondents for refund and for quashing of an order dated 15.09.2014 rejecting its refund applications. 3. The brief facts are that the petitioners engage in readymade garment export and allied business and are duly registered under the provisions of Service Tax. On 21.06.2012, the search proceedings were conducted based upon an allegation that they had evaded duty and did not pay the duty in respect of commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on B of the Section according to which "relevant date" means, - (a)...; (b)...; (c)....; (d)...; (e)...; (ea)....; (eb)...; (ec)...;(f) in any other case, the date of payment of duty. It is only when clauses B(a), B(b), B(c), B(d), B(e), B(ea), B(ec) do not apply that the relevant date would mean to be a date of payment of duty. I find that explanatory clause B(f) fairly and squarely covers the situation. In this situation it becomes relevant to know the date of payment of Service Tax to establish whether application for refund of duty has been filed by the party within the stipulated period or not. The details of the payments made by the party vide 'Cyber Receipt for Payment of Service Tax' submitted are as under in Table-A; Table-A Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using refund, by reference to Section 11B of the Act, is untenable. 7. Counsel for the respondents submitted firstly that this Court should not entertain these petitions on the merits since an efficacious alternative remedy is available. It is submitted that the petitioners could well have appealed against the decision but chose not to do so deliberately and after expiry of the period has opposed it. On the merits, it was contended that the facts, as evident in view of that refund was claimed much beyond the period of limitation, prescribe in that regard and the question of applicability of proviso to Section 11B of the Act does not arise. 8. Section 11B of the Act, which applies to the circumstances of this case, by virtue of Section 83 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the [duty of excise and interest, if any, paid on such duty] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund:" 9. A plain reading of the provision clarifies that the one year period has been prescribed as the time limit for claiming refund in respect of the duty and interest paid on such duty for which refund is claimed. The second proviso states that if the duty and interest is paid under protest, the one year period will not apply. In this case, the Adjudicating Authority went on to hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to de-freeze drawback accounts. Further, it is submitted that we are receiving letters from other formations of the Service Tax Department holding the demanded amount in the five SCNS as dues payable and pressurizing for payment. Since, we have complied with your Lordship's directions and paid substantial amount (under protest) though not legally bound. We, therefore, request you to adjudicate the case at the earliest." 10. The assessee's stand is again clear from the following extract of the adjudication order:- "35. In view of the above, I find that retraction if corroborated with other evidences is still acceptable as evidence. Accordingly, I proceed to examine the contents of retraction. For better appreciation, I would first lilke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrary to the facts and I reaffirm that all the documents like Shipping Bill, Invoices, Packing List and BRC are genuine. This statement which has been extracted by the officers from me on 24.09.2012 under threat and pressure is not correct being contrary to the facts and documents. The statement tendered by me on 24.09.2012 may be taken as retracted." 11. This Court is of the opinion that the facts of the present case clearly point to the petitioner's claim falling within the second proviso to Section 11B of the Act. Concededly, even during the pendency of the adjudication, the petitioner's letter indicating deposits were made (in unequivocal terms) under protest. The adjudication order took note of the earlier statement, which was retra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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