TMI Blog2021 (10) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... und that it is barred by limitation. On merits, the adjudicating authority has observed that the appellant s claim was not supported by any documentary evidences. Further, also the Chartered Accountant certificate furnished by the appellant is given in 2019 while the payments were made in the year 2008. The Chartered Accountant has specified that the said certificate was issued at the request of the appellant . Hence the certificate is only a self serving document which cannot be considered as a conclusive proof to decide the issue. Law provides permissible documentary evidences that are accepted by the sanctioning authority and apparently, no effort seems to have been made by the appellant in this regard. But considering the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angalore, appellants had pre-deposited a sum of ₹ 19,00,000/- (Rupees Nineteen Lakhs) as Service Tax liability which was not quantified by them or by the Department during the relevant time; Appellants had paid a sum of ₹ 28,84,222/- (Rupees Twenty Eight Lakhs Eighty Four Thousand Two Hundred and Twenty Two only) in the regular course during the period of 01/04/2014 to 31/03/2008 plus ₹ 19,00,000/- (Rupees Nineteen Lakhs only) as a pre-deposit of which, a sum of ₹ 35,39,884/- (Rupees Thirty Five Lakhs Thirty Nine Thousand Eight Hundred and Eighty Four only) was appropriated by the Department in the adjudication proceedings including the interest portion; The penalty imposed was paid in full and further the pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as such, these deposits that were made during the period of investigations was not appropriated; It is well settled law that any deposit that are made during the investigations are only pre-deposits which become liable to be refunded on completion of the adjudication proceedings suo moto by the Department. In the instant case, by virtue of Order-in-Appeal being passed adjudication proceedings had come to an end. In this regard they have provided the challan-wise details as to when the deposits were made and to this effect, they also provided a Chartered Accountant s certificate; In the instant case they have not passed any liability since it is only related to the services already provided under the different bills raised by them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-Original (para 23.2 of O-I-O) gave a clear finding that payments referred to in sl. no. E, F G of Table C above amounting to ₹ 9,00,000/- (Rupees Nine Lakhs only) shown to have been paid by the assessee were not paid against the claimant s ST Registration; The claimant has not submitted any documents evidencing that the incidence of duty has not been passed on, and hence, the instant refund claim is hit by Doctrine of unjust enrichment; Vide the Order-in-Original dated 29/03/2019 the appellant s claim for refund was rejected; On Appeal, the Commissioner of Central Tax (Appeals-I) Bangalore, vide impugned Order-in-Appeal No. 388/2020 dated 07/09/2020 has upheld the rejection. 4. Learned advocate would also contend tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. On an analysis of the precedents cited above, we are of the opinion, that when service tax is paid by mistake a claim for refund cannot be barred by limitation, merely because the period of limitation under Section 11B had expired. Such a position would be contrary to the law laid down by the Hon ble Apex Court, and therefore we have no hesitation in holding that the claim of the assessee for a sum of ₹ 4,39,683/- cannot be barred by limitation, and ought to be refunded. 14. There is no doubt in our minds, that if the Revenue is allowed to keep the excess service tax paid, it would not be proper, and against the tenets of Article 265 of the Constitution of India. On the facts and circumstances of this case, we deem it ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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