2010 (6) TMI 344

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....-. Vide the impugned order, the Commissioner (Appeals) vacated the demand of service tax, interest and penalty of Rs. 5,000/- imposed on the appellant but ordered that the claim of the appellant for refund was not tenable. 2. The facts of the case are that pursuant to Audit of the records of the appellant, a manufacturer of refined edible oils, it paid an amount of Rs. 2,30,000/- along with interest amount of Rs. 1,18,863/- at the instance of the authorities. In audit, it was found that the assessee had rendered taxable service classifiable under the category 'Consulting Engineer' during the period 2001-2002 and had received remuneration of Rs. 46 lakhs. The assessee paid the amount Subsequently, a show cause notice was issued on 27-3....

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....tenable in view of the case-law. 3. In the appeal before the Tribunal, it is argued that the appellant had not filed a refund claim in time as prescribed as it was prosecuting its case against the levy before the lower authorities. A procedural lapse should not entail denial of refund due. The appellants were legitimately entitled to refund of the entire amount collected by the department without any authority of law. The appellant prayed that consequential relief may be allowed holding that it was not liable to pay any service tax. During hearing, the Authorised Representative, Shri A.K.S. Moorthy, submitted that the amount involved was paid on 22-3-2006 at the instance of the department and the first order of the Assistant Commissio....

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....he Hon'ble High Court held that excess debit made from the PLA was not governed by the provisions of Section 11B. The Hon'ble High Court upheld the findings of the Tribunal that the excess payment made by the appellant by mistake could not be termed as duty. Relying on the judgment of the Apex Court in the India Cements Ltd. case (supra), their lordships upheld the decision of the Tribunal. 4. The learned JDR submits that in the light of the ratio of the Apex Court judgment in Mafatlal Industries Ltd. v. UOI [1997 (89) E.L.T. 247 (S.C.)] all refunds of duty are governed by the provisions of Section 11B. He relies on a decision of the Tribunal in CCE, Hyderabad v. XL Telecom Ltd. [2006 (206) E.L.T. 303 (Tri.-Bangalore)] wherein the Tri....