TaxTMI 
TaxTMI 
2016 (12) TMI 1784
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....Mr. Sanjeev Narula, Adv. for Respondent No.2. O R D E R CM Nos.28919, 28920, 28917 & 28918 of 2016 1. For the reasons stated in these applications, the same are allowed. Amended memo of parties are taken on record. The applications stand disposed off. W.P. (C) Nos. 4861/2015, 4973/2015, 5502/2015, 7175/2015 & 7837/2015 2. The petitioner claims a direction to the respondents for refund and for quashing of an order dated 15.09.2014 rejecting its refund applications. 3. The brief facts are that the petitioners engage in readymade garment export and allied business and are duly registered under the provisions of Service Tax. On 21.06.2012, the search proceedings were conducted based upon an allegation that they had evaded duty....
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....nt date. Relevant date is further defined vide Explanation B of the Section according to which "relevant date" means, - (a)...; (b)...; (c)....; (d)...; (e)...; (ea)....; (eb)...; (ec)...;(f) in any other case, the date of payment of duty. It is only when clauses B(a), B(b), B(c), B(d), B(e), B(ea), B(ec) do not apply that the relevant date would mean to be a date of payment of duty. I find that explanatory clause B(f) fairly and squarely covers the situation. In this situation it becomes relevant to know the date of payment of Service Tax to establish whether application for refund of duty has been filed by the party within the stipulated period or not. The details of the payments made by the party vide 'Cyber Receipt for....
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....ily paid but rather under protest and rely upon the letters mentioned above. It is stated that in these circumstances, the view of the Adjudicating Authority refusing refund, by reference to Section 11B of the Act, is untenable. 7. Counsel for the respondents submitted firstly that this Court should not entertain these petitions on the merits since an efficacious alternative remedy is available. It is submitted that the petitioners could well have appealed against the decision but chose not to do so deliberately and after expiry of the period has opposed it. On the merits, it was contended that the facts, as evident in view of that refund was claimed much beyond the period of limitation, prescribe in that regard and the question of appli....
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....tuted by that Act:] [Provided further that] the limitation of [one year] shall not apply where any [duty and interest, if any, paid on such duty] has been paid under protest. [(2) If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the [duty of excise and interest, if any, paid on such duty] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund:" 9. A plain reading of the provision clarifies that the one year period has been prescribed as the time limit for claiming refund in respect of the duty and interest paid on such duty for....
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.... M/s Sidh Designers Pvt. Ltd. 30,00,000/- 50102 5. M/s Yogmaya Traders Pvt. Ltd. 30,00,000/- 50097 In view of above, as promised, I would request your Lordship to withdraw the letter directing Commissioners, ICD, TKD & Air Cargo to de-freeze drawback accounts. Further, it is submitted that we are receiving letters from other formations of the Service Tax Department holding the demanded amount in the five SCNS as dues payable and pressurizing for payment. Since, we have complied with your Lordship's directions and paid substantial amount (under protest) though not legally bound. We, therefore, request you to adjudicate the case at the earliest." 10. The assessee's stand is again clear from the following extrac....
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....tly buyer-seller agreement so I am not liable to pay any service tax on my export sales commission paid to overseas buyers. This part of my statement was not allowed by the department to be mentioned in my statement recorded by them on 24.09.2012. These statements are contrary to the facts and I reaffirm that all the documents like Shipping Bill, Invoices, Packing List and BRC are genuine. This statement which has been extracted by the officers from me on 24.09.2012 under threat and pressure is not correct being contrary to the facts and documents. The statement tendered by me on 24.09.2012 may be taken as retracted." 11. This Court is of the opinion that the facts of the present case clearly point to the petitioner's claim fall....