2017 (10) TMI 558

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..... 3. The issue involved in this appeal is rejection of refund claim of Rs. 4,66,091/- by the lower authorities on the ground of limitation. 4. The appellant had filed refund claim for this amount on 30.6.2008. While filing the refund claim, he had given the reason for filing the refund claim on the ground of adjudication order passed by the Commissioner of Central Excise and Customs by Order-in-Original No.2/2008-ST dated 11.4.2008. The lower authorities have held that the refund is in respect of excess tax paid during the period March 2005 to May 2005, hence it is hit by limitation. 5. On perusal of the records, I find that the show-cause notice dated 13.4.2006 was issued to appellant demanding the service tax liability of approxi....

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....y, the service tax liability is worked out as given below: Sl. No. Service Tax Education Cess 1. Amount payable Rs. 10,86,90,886/- Rs.20,34,227/- 2. Amount paid (TR 6) Rs. 9,64,64,951/- Rs.14,44,240/- 3. Amount paid through CENVAT Credit Rs. 1,26,92,136/- Rs.2,38,051/- 4. Total amount paid Rs. 10,91,57,087/- Rs.16,82,291/- 5. Amount short-paid- Rs.3,51,936/- 6. Amount paid in excess Rs.4,66,091/-   As may be seen, the assessee had adjusted a portion of their Service Tax liability by making adjustments in their CENVAT credit account which has been verified and found to be in order. As regards Education Cess, there is short-payment of Rs. 3,51,936/-. M/s. BSNL have paid....

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....nnot hold that the appellant has filed a refund claim belatedly. It is very clear from the adjudication order that the tax liability of the appellant has been finalized by the authorities on 11.4.2008 and having filed the refund claim on 30.6.2008 to my mind it is within three months from the date of adjudication. I find that the refund is rightly filed within time as provided under Section 11B of the Central Excise Act, 1944 which is made applicable to the refunds under Finance Act, 1994. 5.1 I also find that the learned counsel s reliance on the judgment of the Hon'ble High Court of Bombay in the case of CCE, Thane-I vs. Clariant (I) Ltd.: 2015 (319) STR 646 (Bom.) is correct and ratio of the said decision of the High Court is in parag....

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....en the refund application, a copy of which is at page 55 of the paper book and lodged on 20 Feb, 2001 was well within time. It is not the argument of Mr. Rao that only if the refund of duty made under protest a refund of duty can be sought. Even if it voluntarily paid refund can be sought provided, the application is made in terms of the second Proviso to Section 11B (1) of the Act. If the computation of the tax by assessee in this case had been accepted and in 1997 itself, there was no question of claiming refund. Since the revenue did not accept this payment as clearance of the liability to pay duty in accordance with law it issued show cause cum demand notice. That notice demanded the sums over and above the payment made by the assessee ....