TMI Blog2016 (12) TMI 1784X X X X Extracts X X X X X X X X Extracts X X X X ..... der protest. The adjudication order took note of the earlier statement, which was retracted at the beginning of the adjudication proceedings and found that the retraction was genuine -The adjudication order is an exhaustive one and categorically rules that against all transactions which were stated to be taxed could not have fallen within the ambit of Service Tax. In the present case, the entire proceedings seeking recovery of amounts were without jurisdiction and the amounts, which were collected under ostensible authority of law, could not have been collected because the transactions were not subject to levy at all. In these circumstances, the collection of duties was per se illegal. The concerned authorities are hereby directed to process the petitioner s refund claim and ensure that the amounts are remitted to it with applicable interest - petition allowed. - W.P. (C) 4861/2015 & CM No.28919/2016, W.P. (C) 4973/2015 & CM No.28920/2016, W.P. (C) 5502/2015 & CM No.28917/2016, W.P. (C) 7175/2015 & CM No.28918/2016, W.P. (C) 7837/2015 & CM No.28921/2016 - - - Dated:- 21-12-2016 - MR. S. RAVINDRA BHAT AND MR. NAJMI WAZIRI JJ. Through: Dr. G.K. Sarkar with Ms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for refund must be filed before the expiry of one year from the relevant date. Relevant date is further defined vide Explanation 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.No. Name of the Party Service Tax Registration No. Amount in (Rs.) Challan Sr.No. Date of Payment Relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 of the Finance Act, 1994, reads as follows:- 11B. Claim for refund of [duty and interest, if any, paid on such duty].- (1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] may make an application for refund of such [duty and interest if any, paid on such duty] to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise ] before the expiry of [one year] [from the relevant date ] [ in such form and manner ] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of [duty of excise and interest, if any, paid on such duty] in relation to which such refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est against five SCNs issued. We have now deposited ₹ 1.5 Crores (30 Lakhs each) under protest in respect of the five companies/Firm as below- SN. Name of Companies/ Firm Amount (Rs.) Challan No. 1. M/s DSM International 30,00,000/- 50085 2. M/s G.D. Mangalam Exim Pvt. Ltd. 30,00,000/- 50105 3. M/s Konark Exim Pvt. Ltd. 30,00,000/- 50093 4. M/s Sidh Designers Pvt. Ltd. 30,00,000/- 50102 5. M/s Yogmaya Traders Pvt. Ltd. 30,00,000/- 50097 In view of above, as promised, I would request your Lordship to withdraw the letter directing Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoices, 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 retracted at the beginning of the adjudication proceedings and found that the retraction was genuine. The adjudication order is an exhaustive one and categorically rules that against all transactions which were stated to be taxed could not have fallen within the ambit of Service Tax. 12. In Mera Baba Realty Associate (P) Ltd. Vs. Commissioner of Service Tax, Delhi, SERTA No. 26/2016 (decided on 07.09.2016), the Court had set aside the findings of the CESTAT in somewhat similar circumstances, and held that if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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