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TMI Blog2010 (6) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... titled 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 - ST/35/2008 - 899/2010 - Dated:- 11-6-2010 - Shri P. Karthikeyan, Member (T) REPRESENTED BY : Shri A.K.S. Moorthy, Authorised Representative, for the Appellant. Shri M.M. Ravi Rajendran, JDR, for the Respondent. [Order]. - This appeal filed by M/s. Foods, Fats Fertilisers Ltd. seeks to vacate the order of the Commissioner (Appeals). The Assistant Commissioner of Central Excise had confirmed demand of Service Tax of Rs. 2,30,000/- along with applicable interest of Rs. 1,34,270/-. Vide the impugned order, the Commissioner (Appeals) vacated the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n refund of the duty paid, the appellant should have filed a refund claim under Section 11B of the Central Excise Act made applicable to the Finance Act, 1994 as per its Section 83. In terms of Section 11B, the assessee was required to file claim for refund within one year from the relevant date. The relevant date was the date of payment of duty. Relying on the decision of the Tribunal in Avanti Feeds Ltd. v. Commissioner of Customs, Chennai [2007 (213) E.L.T. 280 (Tri.-Bang.)], he held that the period of limitation applied also to cases of illegal levy. As the appellant had not filed any claim for refund, the Commissioner (Appeals) held that such a claim would not be tenable in view of the case-law. 3. In the appeal before the Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of India Cements Ltd. v. CCE - 1989 (41) E.L.T. 358 (S.C.) and the judgment of the Hon'ble High Court of Karnataka in the case of CCE, Bangalore v. M/s. Motorola India Pvt. Ltd. dated 19-7-2006 [2008 (11) S.T.R. (Kar.) = 2006 (206) E.L.T. 90 (Kar.)] in support. In the first judgment cited, the Apex Court held that limitation did not apply to the claim of the appellant therein since it had filed a letter of protest at the time of making the impugned payment. Their Lordships found that the letter constituted the protest of the appellant therein and, therefore, its subsequent claim for refund was held to be not barred by limitation. In the second case, the Hon'ble High Court held that excess debit made from the PLA was not govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied also in respect of claim for refund of an illegal levy. 5. I have carefully perused the case records and considered the rival submissions I find that the payments involved were made pursuant to Audit and at the instance of the authorities. This payment did not follow an assessment of tax due by the authorities. Therefore, payment of Rs. 2,30,000/- cannot be held to be payment of service tax. This amount as well as the interest paid has to be held to have been made as deposit with the department pending completion of investigation and adjudication. Deposit of an amount made towards an alleged liability cannot be held as payment of duty. The payment of duty constituting an illegal levy was held to be subject to limitation prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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