2019 (1) TMI 1120 - AT - Service Tax

Refund claim - time limitation - Section 11B of the Central Excise Act - rejection of refund on the ground that the refund claim filed on 17.01.2017 for the period July 2012 to August 2014 is barred by limitation as the same has been filed beyond the period of one year from the relevant date - Held that - The appellants have filed the refund application on 17.01.2017 after the vacation of the protest - Further, it is found that it is only on 09.01.2017 that the Order-in-Original was passed wherein the Adjudicating Authority has vacated the protest and appropriated the amount towards the demand and therefore, the protest was valid till the order was passed and from the date of passing the Order-in-Original dated 09.01.2017 the refund is within the limitation of one year. Further, once the duty is paid under protest then as per the proviso to Section 11B, the limitation of one year will not apply - the impugned order rejecting the appeal on time bar is not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Appeal against dismissal of refund claim as time-barred under Section 11B of the Central Excise Act.

Analysis:
- The appellant filed a refund claim for Service Tax and interest paid on supervision charges for the period from July 2012 to August 2014, amounting to &8377; 46,07,489. The claim was based on inadvertently paying the tax twice due to payments made by both the Corporate office and Divisional offices. The claim was initially denied due to being time-barred under Section 11B of the Central Excise Act, filed on 17.01.2017 for the period beyond one year from the relevant date.
- The appellant argued that the duty was paid twice under protest, and the refund claim should not be time-barred. They highlighted that the duty paid under protest was withdrawn after an order dated 09.01.2017, and the refund claim filed on 17.01.2017 was within the limitation period. The appellant relied on the proviso to Section 11B, stating that the time limit does not apply when duty is paid under protest.
- The Adjudicating Authority vacated the protest and appropriated the amount towards the demand in the Order-in-Original dated 09.01.2017. The appellate tribunal found that the refund application was filed after the vacation of the protest, and the protest was valid until the order was passed. The tribunal noted that the time limit of one year under Section 11B does not apply when duty is paid under protest, as per the proviso.
- The tribunal concluded that the impugned order rejecting the appeal on the basis of being time-barred was not sustainable in law. The appeal was allowed, setting aside the order, and granting consequential relief to the appellant. The decision was pronounced in open court on 22/01/2019.