2015 (9) TMI 311 - AT - Service Tax

Denial of refund claim - Bar of limitation - Duty paid under protest - Held that - In the G.A.R. -7 Challans dated 5.3.2009, 31.3.2009, 3.7.2009 and 5.10.2012, the appellant has not endorsed the words under protest. Where as in GAR-7 Challans dated 28.4.2010, 5.7.2010, 3.7.2010, 4.10.2010, 4.1.2011, 4,4,2011, 5,7,2011, 4.10.2011 3.1.2012, 31.3.2012 and 4.01.2013 the appellant has marked the words under protest. The refund claim is filed beyond a period one year after deposit. The amount as per these challans have been sanctioned. It is evident that the appellant has not deposited the rejected amount under protest. Thus the claim is barred by limitation as provided under Section 11B of Central Excise Act, 1944. Therefore I do not find any infirmity with the impugned order. - Decided against assessee.

Summary

Issues:
Refund claim rejection as time-barred due to non-deposit under protest.

Analysis:
The appellant filed a refund claim for service tax paid as a sub-agent of Western Union/Money Gram from Jan/2009 to Nov/2012. The claim was rejected for not following the procedure of depositing tax under protest, leading to it being time-barred under Section 11B of the Central Excise Act. The Commissioner (Appeals) noted that the appellant deposited tax on the department's direction, not following the prescribed procedure. Refund of &8377; 58,233/- was allowed for challans mentioning "under protest," while &8377; 33,781/- claim was rejected for lacking the same remark, thus being time-barred. The appellant cited a Supreme Court case for condoning the delay, but the judge found it inapplicable, distinguishing it from the present case. The Department argued that mere marking of "under protest" on challans is insufficient for proper notification. Challans without this remark were rejected, as the claim was filed beyond one year from deposit, barring it under Section 11B.

The judge upheld the rejection, emphasizing that the appellant failed to deposit the rejected amount under protest, as evidenced by the absence of the remark on specific challans. The judge agreed with the Department's contention that proper notification through the prescribed procedure is crucial. While some challans were accepted for refund due to the "under protest" mention, those lacking this remark were rightly rejected as time-barred under Section 11B. The judge found no fault with the Commissioner (Appeals)'s decision, dismissing the appeal based on the failure to comply with the deposit under protest requirement.