TMI Blog2023 (5) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... claim has been filed as per Notification No. 41/2007-ST dated 06.10.2007 as amended by Notification 17/08-ST dated 01.04.2008 read with Section B of the Central Excise Act, 1944 as made applicable to service tax under Section 83 of the Finance Act, 1994. There being so, the finding recorded by the Commissioner (Appeals) in para 6.5 itself is contrary and needs to be set aside. If the tax has been paid under mistake of law, the same could have been claimed as refund by way of refund claim made under Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. Appeal allowed. - Service Tax Appeal No. 85304 of 2020 - FINAL ORDER NO. A/85037/2023 - Dated:- 17-1-2023 - HON BLE MR. SANJIV SRIVASTAVA , MEMBER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmission to non-resident Commission agents appear to have been paid during the period April 2007 to 06.07.2009, further, the service tax and interest thereon appear to have been paid on or after 03.03.2014 and also furthermore, the refund claim is filed on 15.07.2014, iii. No intimation in the form EXP-1 was filed before availing exemption, no six monthly return were filed in form EXP-2 and no relevant documents were submitted during relevant period. 2.2 The show cause notice was adjudicated by the original authority rejecting the refund claim filed. Against this order, appellant filed appeal. Commissioner (Appeals) while deciding the appeal held that the refund claim to the appellant is admissible for the period after 18.04.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund should be allowed even for the period prior 18.04.2006. 4.1 Learned AR has objected to the appeal by stating that this appeal has been filed making Commissioner (Appeals) as respondent and hence this appeal is not maintainable. Learned counsel points that if this was a filing defect, it should have been pointed out by the Registry at the time of filing and it could have been cured then itself. Once the Registry has after scrutinizing the appeal accepted the same, it cannot be pressed. However, he can if required file an amendment memo in a day. Since the defect as pointed out by the AR is a curable defect, it cannot be a ground for holding the appeal to be non-maintainable and the same argument is rejected. Counsel for the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission to foreign agents located outside India were paid during the period April 2007 to July 2009. The earliest date of advice is dt.12.04.07 for S B nos.6250203, 6321429, 6361891, 6378329.... 6588666, 5137778 to 5137784, 5135065, 5128282.The ST payment under RCM should have been made immediately for claiming refund. But, the ST payment is observed to have been made on 03.03.2014 only. - The service tax liability was discharged (being the ST payment on reverse charge mechanism under section 66A) on 03.03.2014 and interest thereon was paid on 06.03.2014. Therefore, though the notification 41/2012 grants exemption by way of refund, the timeline specified therein should have been adhered to. Here, the violation is clearly evident. The S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be time barred and thus inadmissible. 10. In view of the observation made above, I hold that the claimant is not eligible for rebate of Rs. 22,73,634/- under Notification No. 41/2007-ST dt. 06.10.2007 as amended by notification 17/2008 ST dated 01.04.2008, read with Section 11B of the Central Excise Act, 1944, as made applicable to service tax matters vide Section 83 of Chapter V of Finance Act, 1994. 4.5 Commissioner (Appeals) while deciding the appeal does not agree with the rejection of the refund claim on the ground of limitation and holds as follows:- 6.4 To summarize, I find that the refund claim filed by the appellant is well within limit and hence admissible. 6.5 Now, I proceed to discuss as to whether ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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