2014 (11) TMI 755

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... of Section 11B of the Central Excise Act, 1944 are not applicable as the appellant has paid the service tax which was not payable during the relevant time. Further arguments advanced by the learned A.R. that this Tribunal has not authority to sanction the refund claim, I find that as per Section 35B of the Central Excise Act, 1944, if any person aggrieved by the order of the Commissioner (Appeals) can filed an appeal before this Tribunal. Obviously, the appellant before me is aggrieved by the order of the Commissioner (Appeals), therefore, the appeal is maintainable. - refund allowed.
Ashok Jindal, J. For the Appellant : Shri Mayur Shroff, Adv. For the Respondent: Shri Rakesh Goyal, Addl. Commissioner (AR) ORDER Per: Ashok Jindal: T .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... al Excise Act, 1944 are not applicable. To support this contention, he placed reliance on the decision of CCE Bangalore Vs. KVR Construction - 2012 (26) STR 195 (Kar.) and Hind Agro Industries Ltd. v. CC- 2008 (221) ELT 336 (Del). 5. On the other hand, the learned A.R. appearing for the Revenue opposes the contentions of the learned Counsel and supported the impugned order. He submits that all the refund claims are covered by the provisions of Section 11B of the Central Excise Act, 1944 as held by the Hon'ble Apex Court in the case of Assistant Collr. Of Cus. V. Anam Electrical Manufacturing Co- 1997 (90) ELT 260 (S.C.) =. He further submits that as per the decision of the Hon'ble Apex Court in the case of Miles India Ltd. vs. ASST .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ither the Central Excises and Salt Act, 1944 ('Excise Act') or the Customs Act, 1962, as the case may be. In other words when the Hon'ble Supreme Court said that all claims for refund ought to be filed only in accordance with the Customs Act or Excise Act, it obviously did not include payment made under some enactment, which for some reason, had erroneously been made to the Customs authorities. Nowhere did Mafatlal Industries talk of a situation where the refund of a cess paid under the Cess Act, 1985 albeit erroneously, was required to be made under the Excise Act or the Customs Act and under no other enactment. Consequently, the observation in para 4 of the judgment of the Hon'ble Supreme Court in Anam Electrical Manufactu .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X