9911796707
TMI Blog2021 (10) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Ramesh Ananthan, learned Advocate appeared for the appellant and Shri P. Gopakumar, learned DR appeared for the Revenue. 3. The factual matrix leading to the present dispute, as could be gathered from the orders of lower authorities and the arguments of both the sides, are summarized below: * During the investigation of the case by the DGCEI Bangalore, appellants had pre-deposited a sum of Rs. 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 Rs. 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llans during the investigation period pending adjudication by the Competent Authority; * This aspect of deposit were brought to the notice of the original adjudicating authority and the same was also reflected before the Appellate authority, appropriated the tax liability on the strength of challan that were produced by them and 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 en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der-in-Original the adjudicating authority had confirmed that it was only Rs. 25,39,884/- (Rupees Twenty Five Lakhs Thirty Nine Thousand Eight Hundred and Eighty Four only) against which the appellant had not submitted any challans during the said adjudication proceedings; * The adjudicating authority in the Order-in-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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant portion of the said judgment is reproduced below for convenience: "....12. Further, the claim of the respondent in refusing to return the amount would go against the mandate of Article 265 of the Constitution of India, which provides that no tax shall be levied or collected except by authority of law. 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 Rs. 4,39,683/- cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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