AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2015 (11) TMI 911
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....9,15,220/- was not actually realised by them during the above period in October 2007 to March 2008. Accordingly, the appellant have paid an excess amount of service tax of Rs. 18,17,946/- on the retention/withheld amount. The said amount against retention/ withheld was in fact received by them in March 2010 and April 2010 and they have paid appropriate service tax on it which was shown in the details of service tax payment made for the relevant periods in ST-3 returns. The appellant claimed that there was an excess payment of service tax to the tune of Rs. 18,17,946/- during this period. They filed the above said refund claim accordingly. A show cause notice for rejection of the refund claim was issued to the appellant as the refund claim was filed after expiry of one year time limit under Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. The adjudicating authority rejected the refund claim on the ground of time bar. The appellant filed appeal against the said Order-in-Original before the Commissioner (Appeals) who upheld the impugned Order-in-Original and rejected the appeal vide Order-in-Appeal dated 04.01.2013. Aggrieved by the same, the ....
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.... of the Finance Act, 1994, would be invokable here. He also relied upon the decision of the Hon'ble Delhi High Court in the case of Jumax Foam Pvt. Limited vs. UOI 2003 (157) ELT 252 (Del.). 4. On consideration of the arguments and case laws cited by both sides and perusal of the records, it is observed that there is no dispute that the appellant had paid the amount twice to the department. The first payment was made in 2007 when there was no liability for them to pay the said amount since they had not received retention/ withheld amount. They paid appropriate service tax in March/ April 2010 when the retention/ withheld amount received by them. The adjudicating authority has held that second payment was in fact correctly paid service tax against the payment received by them in March and April 2010 and therefore there has been no excess payment during the said period, and was in order. He also held that, though the appellant is eligible for refund of the first payment but it was time barred under the provisions of Section 11B of the Central Excise Act, 1944, since the appellant filed refund application only on 04.05.2011. The Commissioner (Appeals) also took the same view and up....
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....d vs. CCE, Jaipur [2003 (156) ELT 357 (Tri. Del.], held as follows:- "2. We have perused the records and heard both sides. It is not in dispute that no service tax was leviable during the period in question. Therefore, whatever payment was made did not relate to service tax at all. It was merely an erroneous collection by DOT and payment by the appellants. Therefore, provisions relating to refund of service tax, including those relating to unjust enrichment, cannot have any application to the return of the amount in question. It is further noted that provisions contained in Section 11D of the Central Excise Act have not been made applicable to service tax. Therefore, if any amounts are collected erroneously as representing service tax, which is not in force, there is no bar to the return of such amounts. The rejection of refund application was, therefore, not correct." (d) This Bench of the Tribunal in the case of CCE, Ahmedabad vs Shayona Enterprises [2008 (230) ELT 378 (Tri. AHmd.)] held as follows:- "4. After hearing both the sides, I agree with the appellate authority that the deposits made during the investigations are in the nature of provisional deposits and if the sai....
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.... the authority could not have demanded the petitioner to make such payment. In other words, authority lacked authority to levy and collect such service tax. In case, the department were to demand such payments, petitioner could have challenged it as unconstitutional and without authority of law. If we look at the converse, we find mere payment of amount, would not authorize the department to regularise such payment. When once the department had no authority to demand service tax from the respondent because of its circular dated 17-9-2004, the payment made by the respondent company would not partake the character of "service tax" liable to be paid by them. Therefore, mere payment made by the respondent will neither validate the nature of payment nor the nature of transaction. In other words, mere payment of amount would not make it a "service tax" payable by them. When once there is lack of authority to demand "service tax" from the respondent company, the department lacks authority to levy and collect such amount. Therefore, it would go beyond their purview to collect such amount. When once there is lack of authority to collect such service tax by the appellant, it would not give t....