TMI Blog2020 (11) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... ued 06.11.2007, prior to which the assessee had made payments on 31.03.2007 and 23.05.2007. Hence the payments now sought for refund were made even prior to the show cause notice issued. The show cause notice culminated in, the order-in-original dated 02.03.2012, which obviously is with respect to the liability after 18.04.2006. This does not even indicate the assessee having paid the tax under protest earlier to the show cause notice; in which event, the second proviso to Section 11B makes inapplicable the limitation of one year from the relevant date, for filing an application for refund. The respondent-Revenue are restrained from recovering the amounts refunded since as of now the levy of service tax on the payment in lieu of foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the application for refund was filed on 14.08.2012. The appellant also contended that the original order in the case of the assessee was passed on 02.03.2012. 3. The learned Counsel for the assessee argued that the application for refund was made within time and within one year of the Circular as also the order in original. The learned Standing Counsel for the Department, however, submits that the assessee had paid the tax for the period in which the refund is sought, without demur. An application for refund has to be made within one year of such payment as per Section 11B of the Central Excise Act. 4. Section 11B provides for an application for refund before the expiry of the relevant date. 'Relevant date' is defined in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Another v. Assistant Commissioner of Central Excise [2019 KHC 47] considered a Constitution Bench decision in Mafatlal Industries Ltd. v. Union of India [(1997) 5 SCC 536] and found that the mistake if committed by the assessee, whether it be on law or facts; the remedy would be only under the statute. If that be so, the question of law has to be answered in favour of the Revenue and against the assessee. But, however, we notice that the amounts have been refunded to the assessee as per the order of the original authority. In such circumstances, the Revenue would have to recover the amounts from the assessee, in which event we would be directing recovery of an amount which cannot be treated as tax due under Article 265 of the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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