TMI Blog2021 (2) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... y the department and were cured by the appellant. Thus, the amount excess paid in May, 2010 is in the nature of Revenue deposit. Further, there is no limitation for refund of Revenue deposit. In this view of the matter it is held that the refund claim is not barred by limitation. It is also found that the tax was paid through CENVAT credit account and not through cash challans. The excess amount of duty liable to be re-credited in the CENVAT credit Account as the Appellant cannot be given liberty to encash accumulated CENVAT credit bypassing Rule 5 of CENVAT Credit Rules, 2004. Accordingly, I direct the Adjudicating Authority to grant the refund of the said amount of ₹ 9,92,929/- and to be re-credited in the CENVAT credit Account. Appeal allowed - decided in favor of appellant. - 62/JSR/2020 - 09/R/2011-12 - Dated:- 29-5-2020 - (Binod Kumar Gupta) Commissioner (Appeals) Central GST CX, Ranchi Appellant : Shri Akash Aggarwal, CA Respondent : None ORDER The instant appeal has been filed by M/s Tata Cummins Ltd., Telco Township, Jamshedpur, Jharkhand-831004 (hereinafter referred as Appellant) arisen out of Order-in-original No.09/R/2011-12 dated 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 27.02.2013 Commissioner (Appeals) Ranchi allowed the appellant's appeal by holding the refund claim was admissible on the ground that . due to reduction in the royalty the tax was demanded back as refund against the deposit of service tax for the period May, 2010. By holding this, he inferred that as the refund claim against the tax paid in May, 2010 was filed in May, 2011 it was not barred by time limitation. He further held that otherwise also, if tax liability is not there, it shall be treated as deposit on which time limitation under Section 11B of Central Excise Act do not apply. He also found that provision of unjust enrichment was not applicable in this case as the service tax paid was not collected or passed on to anyone. 4. Being aggrieved with the Order-in-Appeal dated 27.02.2013, the Department had filed an appeal before Hon'ble CESTAT, Kolkata on the following grounds:- (i) That the Commissioner (Appeals) has erred in holding that the amount in May, 2010 was more than ₹ 25 lakh and the present refund is more than ₹ 9 lakh hence covered against payment in May, 2010. and in holding further that Later on due to reduction in the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax paid should be adjusted against liability on first in first out (FIFO) basis. In compliance with Accounting Standard-9, the appellant recognized revenue in its books of accounts on accrual basis for the FY 2009-10. Moreover, since the Appellant and M/S Tata Motors Limited are associated enterprises, the Appellant discharged service tax based on provisional entries made in books of accounts. Since service tax was discharged on provisional basis, tax so paid should be adjusted on FIFO basis. The appellant relies on the various case laws in support of their claim. iii. That the amount paid in excess on a provisional basis is merely a deposit paid into the Government account and cannot be said to be payment of service tax. iv. That the amount claimed as refund is not disbursed within stipulated time interest is payable. 7. I have gone through the records of this case and the arguments during the Personal Hearing. I find that the controversy which arises for determination in the instant Appeal is: A. Whether the claim of refund is barred by limitation keeping in view of the date of deposit of tax vis- -vis date of filing of refund claim in terms of Section 11B o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant should be deprived of the relief on account of the laches and delay by the department while issuing the deficiency memo on 18.05.2011 after a delay of 28 days from the receipt of original refund application filed by the appellant on 20.04.2011. I find that the laches or delay occurred on the part of department but relief to the appellant is denied on ground of limitation is not in consonance with the provisions of Section 11B of the Central Excise Act, 1944. 10. On reading of Section 11B of Central Excise Act 1944, I find that any person claiming refund must make an application for refund before the expiry of one year from the date of payment of tax and not from any other date. The clock for one year would start ticking from the date on which the appellant has paid the tax. Thus plain reading of the provisions of section 11B; I find that the claim is not time barred as the appellant had filed refund claim within one year from the date of payment of tax. 11. I find that the Hon'ble High Court of Delhi has, in Commissioner of Central Excise, Delhi-I V. Arya Exports and Industries [2005 (192) E.L.T. 89 (Del.)], held: 4 . The assessee had filed an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbai) while allowing the appeal, the following order has been passed in para 16 by the Tribunal :- 16 . We, therefore, find that the appellant had filed the application for refund within the deadlines stipulated in the relevant notification. The goods in the production of which the taxable services were used had been exported. We also notice that protracted correspondence was with the object of ensuring that all deficiencies in the application were made good. After this prolonged exercise, it would appear that the original authority found no ground for rejection of the claims other than an erroneous interpretation of the bar of limitation. That the limitation should be computed with effect from date of original, albeit incomplete, filing being settled law, the appellant is entitled to refund as per claim. 14. Having considered the appellant contentions, I am satisfied that the amount excess paid in May, 2010 is in the nature of Revenue deposit. Further, there is no limitation for refund of Revenue deposit. In this view of the matter I hold that the refund claim is not barred by limitation. I also find that the tax was paid through CENVAT credit account and not through c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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