TaxTMI 
TaxTMI 
2024 (4) TMI 6
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.... in the SCN. Aggrieved by said order, appellant filed appeal before the Commissioner Appeals and Appellate authority also rejected the appeal. Thereafter appellant approached this Tribunal with a stay application to recover the demand of duty. This Tribunal vide order dated 20.11.2014 stayed recovery of the amount on the ground that the amount paid during investigation is sufficient to cover the pre-deposit for admitting the appeal. Thereafter vide Final Order No. 20808/2017 dated 24.11.2017, this Tribunal held that the credit of Cement and Steel items used in the construction taken as correctly admissible. After disposal of the appeal, appellant has not submitted any refund application and considering the amount paid during investigation as pre-deposit, appellant was expecting refund. Since there was no refund of amount paid during investigation, appellant vide letter dated 15.03.2019 reminded the respondent for refund of due amount with interest. However a SCN was issued proposing to reject the refund claim filed by the appellant on the ground that as per Section 11B(5))ec) of Central Excise Act, 1944, appellant is legally obliged to submit a refund application within 1 year from....
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....ent were to demand such payments, petitioner could have challenged it as unconstitutional and without authority of law. If we look at the conserve, we find mere payment of amount would not be authorize the department to regularize such payment. When once the department had no authority to demand service tax from the respondent because of its circular dated 17.09.2004, 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 a 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 them the authority to retain the amount paid by the petitioner, which was initially not payable by them. Therefore, mere nomenclature will not be an embargo on the right o....
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....r courts, he would naturally pay the duty, whenever he does, under protest. It is difficult to imagine that a manufacturer would pay the duty without protest even when he contests the levy of duty, its rate, classification or any other aspect. If one reads the second proviso to sub-section (1) of Section 11B along with the definition of "relevant date", there is no room for any apprehension of the kind expressed by the learned Counsel. 4. Ld. Counsel for the appellant also draw my attention to the stay order issued by this Tribunal vide Misc order No. 23105/2014 dated 20.11.2014 held that appellant has already deposited entire amount of Cenvat credit with interest treating it as sufficient requirement of pre-deposit of balance dues is waived and stay against recovery is granted during pendency of the appeal. Further submits that considering the law laid down by the Apex Court in the matter of M/s Mafatlal Industries Ltd (supra), refund application is not necessary and once appellant prefer to challenge the demand of duty, it is to be treated as deemed under protest. Ld. Counsel for the appellant also draw our attention to the relevant portion under proviso of Section 11B of the Ce....
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....by the appellant on merits. In the appeal proceedings, Respondent won the case on merits and filed refund claim. Action of the Respondent be contesting the issue on merits itself constitute as case of 'deemed protest' and on time limit will be applicable even as per the second proviso to Section 11B of the Central Excise Act, 1944. However, the amounts were not paid as duty as the time of providing of services but was paid only when the investigation was initiated by the Revenue. In the facts and circumstances the amount paid will be ca case of "deposit" and will not be a situation of payment of duty when on merits. Respondent got a favorable order from the appellate channel. The amount so paid was not recovered on the invoices and department has also not rejected the refund claim on unjust enrichment. Accordingly, it is held that amounts paid by the Respondent was a "Deposit" and not payment of duty when on merits the case was decided in favour of the Respondent. 4.1 Once it is held that the amount paid by the Respondent is a "Deposit" the law laid down by CESTAT, Bangalore in the case of Kunj Behan Dye Chem Private Ltd Vs CCE (Appeals-II), Bangalore (supra), relying upon the Su....
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.... Explanation (B) (ec) considering the explanation with regard to the relevant date, it is the date on which the Tribunal allowed the appeal preferred by the petitioner i.e 07.08.2007. Thus within one year from that date, the petitioner had to prefer claim for refund of Excise Duty in a prescribed form. 14. Considering the arguments advanced by learned advocates of the parties and scanning the materials on record, it is clear that the case of the petitioner that payment towards Excise Duty is in the form of pre-deposit is misconceived. Considering the annexures annexed with the petition, i.e Challans for deposit of Central Excise Duty in Form NO.TR-6, that too, without protest is the payment towards the Excise duty and can never be considered as pe-deposit. If any payment is made as a pre-condition for exercising the statutory right it can be termed as pre-deposit. However it cannot be equated with voluntary deposit of Excise Duty paid even during the course of investigation and prior to show cause notice or adjudication to assert that it is pre-deposit. 9. The Ld. DR also relied on the judgment of M/s AAR AAR Metal Refinery Vs Commissioner of GST & Central Excise, Chennai (repor....