TaxTMI 
TaxTMI 
2024 (5) TMI 1338
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....he refund claim on the grounds of limitations and rejecting the claim of the respondent that the tax was paid under protest. The respondent filed an appeal against the order of the Original Authority before Commissioner (A) on two grounds; one on the ground that the refund was not time barred and the second ground is that the payment was not Service Tax but was only a deposit. 3. The Commissioner (Appeals) in the impugned order held that: "It is apparent that the audit have not issued any Audit Report on the observations made by them, for which the appellant has paid the tax. In the absence of the Final Audit Report (FAR), approved by the competent authority, the observation made by the Audit Officers and communicated to the appellant becomes untenable. The appellant has made the payment of tax with interest and penalty, in the bona fide belief that audit observation was legally sustainable. However, it is clear that the said observation has not been incorporated in the FAR or as a lower authority has reported, the FAR itself has not been issued. In such a scenario, the amount paid by the appellant as tax/penalty/interest, is to be treated as a 'deposit' and not as 'tax amount'.....
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.... decision of the Hon'ble Tribunal and the various High Courts in the following cases: * Credible Engineering Construction Projects Ltd. Vs. CCE, Hyderabad 2022 (9) TMI-844-CESTAT Hyderabad * CCE, Bangalore Vs. KVR Construction 2012 (26) STR 195 (Kar.) * Way2wealth Brokers Pvt. Ltd. Vs. CCT., Bengaluru 2022 (61) GSTL 349 (Kar.) * Bellatrix Consultancy Services Vs. CCT., Bengaluru 2022 (7) TMI 306-Karnataka High Court * CCE & ST Vs. Oriental Insurance Company Ltd. 2023-TIOL-1252-HC-MUM-ST * Giriraj Construction Vs, CCE., Nashik 2017-TIOL-2170-HC-MUM-ST * 3E Infotech Vs. CESTAT, Chennai 2018 (18) GSTL 410 (Mad.) * Bansal Biscuits P. Ltd. Vs. CCE & ST., Patna 2023 (11) TMI 615-CESTAT KOLKATA 6. The respondent in his written submissions claimed that the refund claim is not barred by limitation since, the claim was filed within the time limit specified under Section 11(B). It is submitted that Section 11(B) made applicable to Service Act under Section 83 of the Finance Act, 1994 provides one year time period from the relevant date for filing the refund claim and the relevant date is the date of payment of tax. He submitted that the tax was deposited on 05.12.2016, 27.12.....
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....ubmitted that the respondent had deposited the service tax, interest and penalty on 05.12.2016, 27.12.2016 and 02.01.2017 respectively. Thereafter, refund claim was filed on 06.10.2017 which is within one year time period from the date of deposit of tax and well within the time period prescribed under Section 11B of the Central Excise Act, 1944. With regard to this plea, it is pertinent to mention that the Commissioner in the impugned order has held that the claim of the respondent paid under protest is an incorrect claim. He also observed that they have neither informed the audit Commissionerate nor the jurisdictional division/Range office that the payments were made under protest, and concludes that in the absence of any evidence to prove that payments were made under protest holds the claims were time bar. Therefore, there being no appeal against this finding of the Commissioner (A) by the respondent, the issue with regard to time bar stands settled and cannot be reopened. 8. It is a fact that based on the audit observations, the service tax amount was paid on consultancy services by the respondent. The audit observation was communicated to the respondent vide letter dated 16.1....
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....egality of the tax sought to be imposed as early as 1963, when the Act in question was declared ultra vires as mentioned hereinbefore. Thereafter the taxes were paid in 1968. Therefore, the claim in November, 1973 was belated. We are unable to agree with this conclusion. As mentioned hereinbefore the question that arises in this case is whether the Court should direct refund of the amount in question. Courts have made a distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those where refund is sought as a consequential relief after striking down of the order of assessment etc. Normally speaking in a society governed by rule of law taxes should be paid by citizens as soon as they are due in accordance with law. Equally, as a corollary of the said statement of law it follows that taxes collected without the authority of law as in this case from a citizen should be refunded because no State has the right to receive or to retain taxes or monies realised from citizens without the authority of law." 10. In the present case, it is an admitted fact that the respondent had paid the service tax amount based on audit letter date....