2010 (6) TMI 344 - AT - Service Tax

Refund - assessee had rendered taxable service classifiable under the category Consulting Engineer - assessee paid the amount Subsequently, a show cause notice was issued - Held that - Deposit of an amount made towards an alleged liability cannot be held as payment of duty - amount involved was a deposit; it did not acquire the character of service tax - order was passed in favour of the assessee beyond the period of limitation to claim refund from the date of payment of the amount - appellant could not have claimed refund within the prescribed period of limitation - appellant is entitled to relief consequent to the impugned order holding that it was not liable to pay service tax found due from it by the Assistant Commissioner. The appeal is allowed

Summary

Issues:
1. Appeal seeking to vacate order of Commissioner (Appeals) regarding demand of Service Tax and interest.
2. Dispute over classification of services rendered under 'Consulting Engineer' category.
3. Appellant's claim for refund and contention against time limitation for filing refund claim.
4. Interpretation of Section 11B of the Central Excise Act in relation to refund claims.
5. Comparison of legal precedents regarding refund claims in similar cases.

Analysis:
1. The appeal was filed by M/s. Foods, Fats & Fertilisers Ltd. to challenge the order of the Commissioner (Appeals) confirming the demand of Service Tax of Rs. 2,30,000/- with interest. The Commissioner (Appeals) vacated the demand but rejected the claim for refund by the appellant.

2. The case involved a dispute regarding the classification of services provided by the appellant under the 'Consulting Engineer' category. The Commissioner (Appeals) found that the alleged services did not attract service tax, leading to the decision in favor of the appellant.

3. The appellant argued that they were entitled to a refund of the amount paid as they were not liable to pay service tax. They contended that the refund claim was not filed in time due to ongoing legal proceedings against the levy. The Tribunal considered legal precedents and held that the appellant was entitled to relief as the payment was made pending investigation and did not constitute payment of duty.

4. The interpretation of Section 11B of the Central Excise Act was crucial in determining the validity of the refund claim. The Tribunal analyzed the applicability of the limitation period prescribed under Section 11B in cases of illegal levy, ultimately ruling in favor of the appellant.

5. The Tribunal compared various legal precedents, including judgments from the Apex Court and High Courts, to support its decision. The Tribunal distinguished the present case from previous rulings and concluded that the appellant was entitled to relief as the amount paid was considered a deposit pending investigation, not a payment of service tax.

This detailed analysis highlights the key issues raised in the appeal, the legal arguments presented by both parties, and the Tribunal's decision based on the interpretation of relevant laws and precedents.