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of <h1>Appellate Tribunal allows refund appeal, distinguishing between deposit and advance tax.</h1> The Appellate Tribunal CESTAT AHMEDABAD allowed the appeal, setting aside the Commissioner (Appeals)'s decision to reject the refund claim for excess ... Claim of refund of excess service tax paid - Bar of limitation - Section 11B - Held that:- appellant had requested the department on 16.7.2010 in writing that the excess amount paid by them in April 2010 may be kept as deposit with the department to be adjusted against any future liability of service tax. Hence, we find force in the arguments of the learned Advocate that the amount should be treated as deposit only. As only the part of the amount could be utilised subsequently in 2012 and the balance amount could not be utilised, the balance amount which is only a deposit, should be refunded to them. The issue, whether refund of such amount can be denied under the provisions of Section 11B, is no more res-integra as the Tribunal [2008 (2) TMI 760 - CESTAT, AHMEDABAD] and various High Courts [2012 (7) TMI 22 - KARNATAKA HIGH COURT ] in a number of cases have held to the contrary - time-limit prescribed under Section 11B is not applicable in the instant case. The impugned order of the Commissioner (Appeals) is therefore set-aside. - Decided in favour of assessee. Issues involved:Claim for refund of excess service tax paid, applicability of Section 11B(2) for refund claim, determination of whether the amount paid was a deposit or an advance tax payment, consideration of limitation period for refund claim.Analysis:1. Claim for refund of excess service tax paid:The appellant, a service tax assessee, mistakenly paid an excess amount of service tax in April 2010. They subsequently requested to keep the excess amount as a deposit to be adjusted against future service tax liabilities. The issue arose when the department adjusted a part of the excess amount against a service tax liability in March 2012 and the appellant requested a refund for the remaining amount in July 2012. The appellate authority sanctioned the refund claim, but the Commissioner (Appeals) rejected it on grounds of limitation. The main contention was whether the appellant was eligible for a refund of the excess amount paid.2. Applicability of Section 11B(2) for refund claim:The Revenue argued that the refund claim was hit by limitation as per Section 11B(2) since the amount was paid in April 2010. However, the appellant contended that the excess amount was mistakenly paid and treated as a deposit, not an advance tax payment. The dispute revolved around whether the provisions of Section 11B(2) applied to the refund claim or not.3. Determination of whether the amount paid was a deposit or an advance tax payment:The appellant's representative argued that the amount paid in excess was a deposit and not an advance tax payment. They maintained that the excess amount was intended to be kept as a deposit to be adjusted against future service tax liabilities. The issue was whether the nature of the payment was indeed a deposit as claimed by the appellant, which would impact the eligibility for a refund.4. Consideration of limitation period for refund claim:After considering the arguments from both sides and reviewing the records, it was observed that the excess amount paid in April 2010 was requested to be kept as a deposit by the appellant. The Tribunal found merit in the appellant's argument that the amount should be treated as a deposit, especially since only a part of it was utilized in 2012. The Tribunal referred to previous decisions to support the conclusion that the time-limit prescribed under Section 11B did not apply in this case. Consequently, the impugned order of the Commissioner (Appeals) was set aside, and the appeal was allowed with consequential relief.This detailed analysis of the judgment from the Appellate Tribunal CESTAT AHMEDABAD highlights the key issues involved, the arguments presented by both parties, and the Tribunal's decision based on legal principles and precedents cited in similar cases.
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