2019 (12) TMI 185

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....ram, Ld. Advocate appearing for the assessee-appellant, submitted inter alia that the appellant was rendering services under the category of Security Agency, Manpower Service and Maintenance and Repair Service; that they had received a commission of Rs. 21,01,689/- towards the maintenance of one helicopter by the Government of Tamil Nadu; that the activity of the appellant was considered as a service under 'Business Auxiliary Service' and accordingly, a Show Cause Notice dated 27.02.2009 was issued and the demand was also confirmed in the Order-in-Original No. 29/2009 dated 26.08.2009; that an appeal was filed and pending appeal adjudication, the appellant thought it fit to pay the tax to save interest/penalty; that in appeal, Ld. First App....

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....artmental Representative appearing for the Revenue, seriously opposed the contentions of the Ld. Advocate for the appellant and contended that the claim of the appellant was hopelessly barred by limitation inasmuch as the cause of action having arose in 2013 for the deposit made in 2011, the refund has been claimed in 2017, for which the appellant has not at all offered any explanation. 3.2 She further contended that the taxing statute has to be strictly construed, and relied on the ratio of the Hon'ble Apex Court in the case of M/s. ALD Automotive Pvt. Ltd. Vs. Commercial Tax Officer reported in 2018 (364) E.L.T. 3 (S.C.). Ld. Departmental Representative also relied on the following decisions: (i) JSW Dharmatar Port Pvt. Ltd. V....

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....isdictional High Court has answered as to what constituted payment made under protest, in the following manner : "10. The above facts are found in the findings recorded by the Commissioner in its order dated 1-6-2007. A conspectus consideration of the above facts only go to show that the payment made by the first respondent/assessee was not voluntary and was forced to make the said payment. In such circumstances, the said payment can only be construed as one made under protest. When once the said conclusion based on the above facts are inevitable, then the second proviso to sub-section (1) of Section 11B of the Central Excise Act, automatically comes into play. Therefore, the conclusion of the Tribunal in having held that the first....