TMI Blog2021 (8) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... t as the Service Tax being paid by the appellant for the period of April, 2017 to June, 2017 but out of the payment made from 11.4.2017 to 24.4.2017. Admittedly, ₹ 1,51,404/- remained the balance to be adjusted for the service tax liability of appellant as may occur after quarter ending on 30.06.2017. These admitted facts are sufficient to hold that the amount in question was not at all tax liability of the appellant. Since post July 01, 2017, the applicability of this Rule was no more available to the appellant, the excess amount already got deposited by the appellant at the time when Service Tax liability for the said quarter had not even accrued towards the appellant, but remain unutilised for any tax liability till 30.06.2017, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017. Initial payment for the aforesaid quarter was made during 11.4.2017 to 24.4.2017. However, the Service Tax Return for the said quarter was filed on 15.8.2017. Since with effect from 01.07.2017 provisions of GST Act came into operation under which law the appellant was no more entitled to have the similar arrangement of adjusting the excess payment towards his future liability as was available under Rule 6 (4A) of Central Excise Act, 1944. Accordingly, the aforesaid refund was filed. However, vide Show cause Notice No. 9687 dated 24.08.2018 refund was proposed to be rejected as it has not been filed within one year from 24.4.2017. The said proposal was rejected initially vide Order in Original No. 10034 dated 10.9.2017. The appeal there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. Since no services were provided by the appellant post June 30, the question of service tax liability of the appellant does not arise. Accordingly, the said amount cannot be considered as tax and the bar of limitation under section 11B cannot be fastened towards the said amount. Order under challenge is alleged to have wrongly been invoked. Section 11B B(f) of Central Excise Act, 1944, which is applicable to the Service Tax as well. Order accordingly, prayed to be set aside and appeal prayed to be allowed. 4. While rebutting these arguments, learned Departmental Representative has impressed upon Para 9 of the judgement where Commissioner (Appeals) has recited the definition of relevant date in terms of sub clause (f) of Section 11(B) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of applicability of section 11B of Central Excise Act specially bar of limitation incorporated therein is not opined to be applicable to the given facts and circumstances. I draw my support from the decision of Tribunal Mumbai in the case of Fluid Controls Pvt. Ltd. vs CCE, Pune 1 reported in 2018 (364) ELT 1041 (Tri-Mum)]. 7. Though Hon ble High Court of Mumbai in the case of Parijat Construction vs. Commissioner of Central Excise, Nashik reported in [2018 (9) SGSTL 8 (Bom)] wherein it has been held that limitation prescribed under section 11B of the Central Excise Act, 1944, is applicable to refund claim of Service Tax irrespective of the tax is made under mistake of law. In the present case, it was not at all the deposit of excess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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