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TMI Blog2010 (12) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... r credited the amounts to the exchequer during January to March 2007. The builders remittances of service tax to the government were under protest which was endorsed on the TR-6 challans. The appellants filed refund claims on 2.4.2008. All these claims were rejected as time-barred. The orders of the original authority were upheld by the Commissioner (Appeals). Hence these appeals. 2. The dates/periods mentioned above have been taken from the appellate Commissioners order. Examination of the records shows that there are apparent mistakes in the dates indicated by the lower appellate authority. For instance, a copy of the refund claim filed by the first appellant, which is available on record, indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; The apex court accepted the minority view to the effect that the purchaser of goods was also entitled to claim refund without time-bar where the payment of duty by the supplier (manufacturer) of the goods was under protest. The learned Commissioner (Appeals), in the impugned order, followed the majority view and rejected the refund claims as barred by limitation. 5. By way of assisting the Bench, the learned SDR points out that it was minority view in National Winder case that was accepted by the apex court and further that the decision of the apex court in the said case was overruled by a Larger Bench of that Court in the case of CCE, Mumbai-II vs. Allied Photographics India Ltd. 2004 (166) ELT 3 (SC). On a perusal of the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed period of limitation; (b) the burden of service tax to be shown not to have been passed on to any other person. In the instant case, according to the SDR, all the refund claims were filed beyond the period of one year from the relevant date, which, according to the SDR, has to be determined in terms of Explanation (B)(e) to Section 11B of the Central Excise Act. The Explanation referred to by the SDR reads thus:- For the purposes of this section, (B) relevant date means, (a) (b) (c) (d) (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person. It is submitted that the position of a service recipient like each of the appellants is comparable to that of a person who has pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claims are within the statutory period of one year from the relevant date, viz. the date on which they paid service tax to the builder. As I have already indicated, the appellate Commissioners order is not clear on the dates of payment of service tax to the builder or on the dates of refund claims themselves. The orders passed by the original authority are also lacking clarity. Neither of the authorities has considered the relevant provisions of law in the aforesaid manner. The appellate authority chose to apply a decision of this Tribunal, which is not good law in view of Allied Photographics India Ltd. (supra). The original authority did not have the benefit of the applicable case law. For all these re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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