2020 (3) TMI 260

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..... Act. Further, the appellant lets out shops, godown etc. to the traders, brokers and consignment agent within 'agriculture produce market', set up by them. Show cause notice dated 10.01.2018, was issued invoking extended period of limitation as it appeared that service tax was payable on receipt of rent under the category of 'Renting of Immovable Property'. Further, the appellant has neither collected nor paid such tax. Show cause notice was adjudicated vide order-in-original dated 22.11.2013 and tax was demanded for Rs. 1,94,970/- alongwith penalty. The appellant filed appeal before the Commissioner (Appeals) and they also deposited the adjudicated amount of Rs. 1,94,970/- by challan on 05.02.2014, and further they informed the Department .....

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..... notice was adjudicated on contest and the refund of Rs. 2,86,454/- (Rs. 1,94,970/- + Rs. 91,664/-) was rejected on the ground of limitation and refund of Rs. 60,797/- was allowed, but credited to the Consumer Welfare Fund. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals) who has been pleased to observe that the refund claim filed on 27.10.2017, more than eighteen months from the date of order of Commissioner (Appeals) and accordingly under Section 11B the claim is clearly time barred, as the limitation for refund starts from the date of decision of the Appellate court. Accordingly, refund of Rs. 1,94,970/- was rejected. It is also urged by appellant that the impugned order passed by the Commissioner (Appeals .....

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..... erned by the provisions of section 35FF as it stood before the commencement of the said Act. 6. Thus, an assessee is ipso facto under the law, entitled to refund on being successful in appeal of the amount deposited under Section 35F of the Act read with Section 83 of the Finance Act, 1994. Further, Section 35F read with Section 35FF does not provide for any refund application to be made by the assessee after being successful in appeal. Accordingly, I hold that limitation prescribed under Section 11B is not applicable for refund claim under Section 35FF. Accordingly, the impugned order is set aside and the appeal is allowed. The appellant is held entitled to refund of both the amounts of Rs. 1,94,970/- and Rs. 91,664/-, with interest from .....

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