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TMI Blog2011 (1) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... l in having held that the first respondent made the payment under protest was well justified and the order of the Tribunal in holding that the application made by the first respondent/assessee for refund of the payment made in its application dated 18.08.2006 cannot be thrown out on the ground of limitation. - 2549 of 2010 - - - Dated:- 28-1-2011 - F M Ibrahim Kalifulla and N Kirubakaran, JJ Appellant Represented by: Mr. S Yashwanth Senior Panel Counsel for Central Excise Respondent Represented by: Mr. N Viswanathan JUDGEMENT Per: F M Ibrahim Kalifulla: The Commissioner of Service Tax is the appellant. The challenge is to the order of the Tribunal dated 18.01.2008 passed in Final Order No. 37 of 2008 2. The issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 05.11.2003, the respondent/assessee had to make the payment before the last date i.e. on 12.11.2003 since the last date for filing the return was 13.11.2003. 5. The Assistant Commissioner of Service Tax passed its order dated 25.07.2006 ultimately dropping the further proceedings in respect of the demand for service tax on GTO services and also granting consequential relief subject to the provisions of Section 11B of the Central Excise Act, made applicable to service tax under Section 83 of the Finance Act, 1994. The said order made it clear that the first respondent/assessee was a registered small scale industry with the State Government, which is excluded from payment of service tax as a GTO for the period from 16.11.1997 to 01.06.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of limitation is substantial question of law that arises for consideration in this appeal while challenging the order of the Tribunal and insisted for entertainment of this appeal. However, on hearing the learned standing counsel for the appellant as well as the counsel for the first respondent-assessee and after perusing the material papers including the orders of the Assistant Commissioner, the Commissioner as well as the Tribunal, we do not find any scope to entertain this appeal. 9. The only question of law that the appellant seeks to raise is on the ground of limitation. There is no question of law sought to be raised on other aspects dealt with by the Tribunal. While examining the issue relating to the limitation, as noted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to make the payment on 12.11.2003. 10. The above facts are found in the findings recorded by the Commissioner in its order dated 01.06.2007. A conspectus consideration of the above facts only go to show that the payment made by the first respondent/assessee was not voluntary and was forced to make the said payment. In such circumstances, the said payment can only be construed as one made under protest. When once the said conclusion based on the above facts are inevitable, then the second proviso to sub section 1 of Section 11B of the Central Excise Act, automatically comes into play. Therefore, the conclusion of the Tribunal in having held that the first respondent made the payment under protest was well justified and the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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