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TMI Blog2024 (5) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs.57,71,039/- by setting aside Order-In-Original No.06/R/D-I/GZB/2020-21 dated 18.08.2020 stating that the refund claim is time barred. 2.1 The respondent is engaged in providing 'work contract service' falling under Section 65 of the Finance Act, 1994. During the course of the audit it was found that the appellant had deposed the amount claim as refund pursuant to an audit objection raised by the Department during the period 03.06.2012 to 25.09.2017. Pursuant to the audit objection respondent deposited the said amount. 2.2 After the deposit of the amount a show cause notice dated 30.08.2018 was issued for short payment of service tax of the same amount. 2.3 This show cause notice was adjudicated vide order 25.03.2019 dropping the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay hear and decide the appeal ex-parte." 3.4 This appeal is taken up for consideration after hearing the Departmental Representative, who reiterates the grounds taken in the appeal memo. 4.1 We have considered the impugned order along with the submissions made in the appeal and during the course of argument. 4.2 Undisputedly the proceedings initiated against the respondents by the show cause notice of 2018 have been dropped by the Additional Commissioner vide his Order-In-Original dated 29.03.2019. This fact is also recorded by the original authority in his Order-In-Original stating as follows:- "I find that the said SCN was adjudicated by the Additional Commissioner, CGST, Ghaziabad vide OIO No 24/ADC/ST/GZB/2019 dated 29.03.2019 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of payment - Section 11BB of Central Excise, Act, 1944. [para 6] Therefore, the amount deposited by the appellant remained only a revenue deposit/ pre-deposit with the government, and the appellant was entitled to the refund of the said amount/deposit along with interest from the date(s) of deposit till the payment of the same." 4.4 In their appeal Revenue has stated that refund claim has been filed after expiry of the period of limitation from the relevant date. On going through Section 11B of the Central Excise Act we find that relevant date has been defined as follows : - "(B) "relevant date" means, - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son; (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; [(ec) in case 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;]" 4.5 In the present case the appellant relevant date for refund claim would not be the date of payment but the date of the decision for Order-In-Original. As refund claim has been filed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und due towards tax liability and which is not the case here. At the time when the amount of Rs. 2,38,00,000/- was deposited, there was no assessment and no demand. 12. The respondents are reminded of Article 265 of the Constitution of India prohibiting any tax to be levied or collected except by authority of law. The respondents have also not pleaded a case of the petitioner being not entitled to refund, on the ground of the petitioner having passed of the liability to another as illustrated in the Nine Judge Bench's judgment of the Supreme Court in Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 = 1997 (89) E.L.T. 247 (S.C.). Allowing the respondents to retain the said amount, would also be in violation of Section 72 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberally in favour of the assessee." 4.7 Hon'ble Bombay High Court has in case of Nimish Engineering Pvt. Ltd [2015 (323) E.L.T. 56 (Bom.)] observed as follows: " 5. The basic dispute raised by the Revenue in this appeal is whether the Commissioner Central Excise (Appeals) and the CESTAT were justified in allowing the refund claim which was filed beyond the period of limitation. 6. From the facts narrated herein above, it is seen that the amounts in question were deposited by the assessee pursuant to the show cause notice issued by the Excise Authorities. Though the proceedings were dropped by the Deputy Commissioner vide order dated 27th February, 2002, the Revenue had challenged the said decision by filing an appeal before the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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