AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2026 (5) TMI 1520
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....e which the learned Commissioner (Appeals) has rejected the appeal of the Department and upheld the Order-in-Original dated 27.07.2015. 2. Briefly stated facts of the present case are that the Respondent-M/s Shyama Power India Ltd were engaged in the business of providing services in connection with transmission & distribution of electricity and related infrastructure activities. 2.1 An investigation was initiated by the Directorate General of Central Excise Intelligence, Hqrs. New Delhi ('DGCEI'), alleging that the Respondent were liable to pay service tax under categories such as erection, commissioning or installation services and works contract service. 2.2 During the pendency of investigation, the Respondent deposited a total ....
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.... 3. Heard both sides and perused the material on record. 4. Ms. Amita Gupta, the learned Authorized Representative appearing on behalf of the Appellant-Revenue submits that the impugned Order-in-Appeal is not sustainable as the same has been passed without properly appreciating the facts and the law. 4.1 She further submits that the Commissioner (Appeals) has wrongly treated the amount as "duty paid under protest", even though the Respondent did not follow the mandatory procedure prescribed under Rule 31 of Central Excise Rules, 2002 such as giving written intimation to the Superintendent, obtaining acknowledgment and marking challans/invoices as "under protest". 4.2 She further submits that the proviso to Section 11B(1) of the Cen....
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....44 as made applicable to service tax matters under Section 83 of the Finance Act, 1994, governs refund of duty/tax which has been "paid" to the Government; it does not apply to amounts merely deposited under investigation or coercion before final assessment/adjudication. He also submits that distinction between a "deposit" and "tax/duty" is well recognized. He further submits that a deposit made by the Respondent during investigation is not a payment made "in pursuance of assessment/adjudication" but an amount collected for administrative convenience or due to coercive circumstances and therefore, the Department cannot retain such amount when the very foundation of the Respondent's tax liability has been held to be non-existent. In this reg....
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....ection 11B(1) explicitly provides that "the limitation of one year shall not apply where any duty has been paid under protest". He also submits that the letters dated 16.03.2011 and 09.05.2011 addressed to the DGCEI clearly recorded that the deposits were made under protest during ongoing investigation. 5.6 As regard the relevant date for computation of limitation, he submits that it would be the date of final adjudication i.e. the date on which the demand was dropped because prior to adjudication, there was no final determination of the Respondent's non-liability and therefore, no cause of action for refund arose. 5.7 He also submits that the Order-in-Original dated 07.10.2013 was received by the Respondent on 19.11.2013 and refund a....
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.... activities related to transmission & distribution of electricity are fully exempt under Notification No. 45/2010-ST dated 20.07.2010, the Respondent filed the refund claim deposited during investigation which was sanctioned by the Assistant Commissioner vide Order-in-Original dated 27.07.2015. Thereafter, the appeal of the Department, filed against the Order-in-Original dated 27.07.2015, was dismissed by the Commissioner (Appeals) vide the impugned Order-in-Appeal. 7. We find that only ground raised by the Department in their appeal for denial of refund was that the duty/tax was not paid under protest rather it was voluntarily paid and the procedure for giving the intimation to the Superintendent and marking the challans/invoices was no....