TMI Blog2023 (7) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed manner and within one year from the relevant date as provided under the Explanation clause (B). It is not the case of the appellant that the service tax was paid under protest, in which case the one year time limit does not apply. The relevant date for the purpose of this case, in which the appellant have voluntarily paid the short payment of service tax, is the date of payment of duty/ tax - In the present case, since the refund claim has been filed for the total payment of service tax of Rs. 1,06,62,609/- which covers the payment made on 25.03.2014, 29.03.2014, 25.11.2014, it is found that the refund claim filed on 23.02.2016 for these payments were beyond the prescribed period of one year. Further, there is/are no separate refund application(s) with breakup detail in respect of payments made on 07.04.2015, 01.09.2015, 11.09.2015 and 01.10.2015 for entertaining these as having been filed within one year time period. Hence, on the limited angle of time limit, the refund application is not maintainable in terms of Section 11B of the said Act as made applicable in relation to Service Tax. Central Board of Indirect Taxes and Customs had issued a circular No.177/03/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... providing services under the category of Cargo Handling Service etc. to their clients. The appellants are also holding Category-I license as Container Train Operator and are running container traffic across Indian Railway Network on pan India basis. During the disputed period i.e., October 2012 to March 2013, the appellants have allegedly provided cargo handling service (loading and unloading) for rice by way of transportation by Rail, from one place in India to another. The appellants have paid service tax with interest and penalty on various dates in respect of cargo handling charges provided for rice as instructed by the Directorate General of Central Excise Intelligence (DGCEI), Chennai Zonal Unit, Chennai during the course of an investigation. The total service tax of Rs.1,52,85,442/- demanded by DGCEI investigation was paid by the appellants through Cenvat Credit for an amount of Rs.1 crore and further Rs. 52,85,442/- was paid through cash deposit. Further, an amount of Rs.30,70,631/- was paid towards interest and Rs.23,06,536/- was paid towards applicable penalty. Subsequently the appellant claimed that they were exempted from payment of service tax against cargo handli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015 and thus they have filed refund application on 25.02.2016 which is well before one year from the last date of payment i.e., 30.09.2016, and hence their case is not hit by time bar. 4. Learned AR appearing for Revenue reiterated the findings of the learned Commissioner in the impugned order and highlighted that both on time limit and on merits the refund application of the appellants cannot be entertained. 5. Heard both sides and perused the records of the case. 6. From the records placed before us, we find that an investigation was initiated against the appellants by DGCEI, Chennai Zonal Unit under summons proceedings during 20.02.2014, 25.02.2014, 08.05.2014, 02.06.2015, 24.06.2015, 02.09.2015. On the basis of the appellants request letter dated 25.5.2015 for waiver of issue of show cause notice in the investigation proceedings, the DGCEI had issued a letter dated 23.09.2015 requesting the appellants to pay the short paid service tax of Rs.1,52,85,442/- along with interest of Rs.30,70,631/- and penalty for an amount of Rs.22,92,816/-. The short payment of service tax have been made good by the appellants during the investigation of the case by DGCEI, through payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h duty and interest, if any, paid on such duty had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act: Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; (f) in any other case, the date of payment of duty. The plain reading of the above legal provisions amply makes it clear, that any refund of excise duty/service tax can be entertained only in terms of sub-section (1) of Section 11B and any refund shall be made strictly in terms of sub-section (2) of Section 11B of the said Act. Accordingly, any person claiming refund is required to file the refund application in the prescribed manner and within one year from the relevant date as provided under the Explanation clause (B). It is not the case of the appellant that the service tax was paid under protest, in which case the one year time limit does not apply. The relevant date for the purpose of this case, in which the appellant have voluntarily paid the short payment of service tax, is the date of payment of duty/ tax. In the present case, since the refund claim has been filed for the total payment of service tax of Rs. 1,06,62,609/- which covers the payment made on 25.03.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the services provided by the appellants in loading, unloading, storing and transportation of rice or other goods in container/wagons across rail is covered under the scope of taxable services specified under Sub-sections (zr) and (zzzp) of Section 65 (105) of the Finance Act, 1994. We further find that Notification No. 25/2012-Service Tax dated 20.06.2012, interalia, provided exemption from payment of whole of service tax leviable on the following: 20. Services by way of transportation by rail or a vessel from one place in India to another of the following goods - (a) petroleum and petroleum products falling under Chapter heading 2710 and 2711 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); (b) relief materials meant for victims of natural or man-made disasters, calamities, accidents or mishap; (c) defence or military equipments; (d) postal mail or mail bags; (e) household effects; (f) newspaper or magazines registered with the Registrar of Newspapers; (g) railway equipments or materials; (h) agricultural produce; (i) foodstuff including flours, tea, coffee, jaggery, sugar, milk products, s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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