TaxTMI 
TaxTMI 
TaxTMI 
2024 (1) TMI 636
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Appellant was coerced to handover two cheques of Rs.20 lakhs each, with an assurance that the remaining amount of Rs.40 Lakhs shall be paid during investigation. That on the insistence of the Officers, the Appellant deposited an amount of Rs.30 Lakhs through e-challans dated 19.10.2012 and 29.10.2012. However, as no show cause notice was issued in respect of the non-payment/short-payment of duty, hence the Appellant submitted letter dated 08.02.2013 seeking refund of Rs.30 Lakhs. 3. As per the Appellant, it was only after the letter dated 08.02.2013 was submitted, show cause notice dated 06.06.2013 was issued alleging non-payment/short payment of duty and appropriation of amount deposited by the Appellant. The show cause notice was adjudicated by Order-in-Original dated 17.06.2014 wherein part of demand of duty was confirmed against the Appellant, amount of Rs.30 Lakhs was appropriated and penalties were imposed on the Appellant and some other persons. The said Order-in-Original dated 17.06.2014 was challenged by the Appellant and others and also by the revenue before this Tribunal and by Final Order No.71687-71692/2018 dated 31.07.2018, the appeal filed by the Appellant and o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rther, on appeal being filed, this Tribunal vide Final Order dated 31.07.2018 allowed the appeal filed by the Appellant and dismissed the appeal of the revenue, which order attained finality, in absence of any challenge being made. The jurisdictional High Court i.e. the Hon'ble Allahabad High Court in Ebiz.com Pvt. Ltd. v. Commissioner of Central Excise 2017 (49) S.T.R 389 (All) while dealing with similar facts has considered the issue of refund, as under:- 19. We have to examine, if there is any provision applicable to the facts of the case in dealing with the demand of petitioner for refund of the amount along with interest or whether in general law, petitioner can be held entitled to such relief. 21. In the present case, the amount in question, refund whereof is claimed, was not paid. It is not such amount of duty which was deposited by assessee. To check evasion of „Excise duty‟ or „Service Tax‟, raid was conducted on 12-1-2007, when during raid, sum of Rs. 25,55,000/- was got deposited. Amount of interest thereon was subsequently realized from petitioner on 29-3-2007 i.e. before issue of notice on 3-7-2007. Such deposit was involuntary by petition....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tries Limited v. Commissioner of Customs, (2008) 221 ELT 336 (Del.). In that decision the Court has discussed the legal position emerging from the decision of the Supreme Court in Mafatlal Industries v. Union of India, (1997) 89 ELT 247 (SC). 4. Consequently, the Court is of the view that the CESTAT ought to have first satisfied itself that the services rendered by the Appellant was, on facts, amenable to service tax and different from the other three appeals which were heard together with the Appellant's appeal and allowed by the same impugned order. If and only if the CESTAT finds that the services rendered by the Appellant were in fact amenable to service tax would it then take up the question whether in terms of Section 11B of the Central Excise Act, 1944 and the claim of the refund was barred by limitation." Similar view has been taken by Hon'ble Karnataka High Court in Commissioner of Central Excise Bangalore v. KVR Construction 2010 SCC OnLine Kar 5419 explained the legal position in the following terms:- 19. From the reading of the above section, it refers to claim for refund of duty of excise only, it does not refer to any other amounts collected without authori....
X X X X Extracts X X X X
X X X X Extracts X X X X
....scribed under Section 11B of the Act to the present case were admittedly appellant had paid a Service Tax on Commercial or Industrial Construction Service even though such service is not leviable to service tax. We are of the view that the decisions relied upon by the Appellate Tribunal do not support the case of the respondent in rejecting the refund claim on the ground that it was barred by limitation. We are, therefore, of the view that the impugned order is unsustainable. 7. We accordingly allow the present appeals and quash and set aside the impugned order, insofar as it is against the appellant in both appeals. We fully allow refund of Rs.8,99,962/- preferred by the appellant. We direct that the respondent shall refund the amount of Rs.8,99,962/- to the appellant within a period of three months. There shall be no order as to costs." ii. 3E Infotech vs. CESTAT [2018 (18) GSTL 410 (Mad.)] "9. In the above cited case, the Supreme Court stated that the Assessee‟s claim to refund would not be disallowed solely because it seemed barred by limitation. Since the Assessee in that case made the claim for refund shortly after learning about their entitlement for the same, i....