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TMI Blog2015 (11) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... was dropped is not time-barred. - refund arose out of the adjudication order and the same was filed within three months from the date of such order and hence it is not time-barred - it is apparent that test of unjust enrichment has not been passed either during adjudication of the refund or at the stage of lower appellate authority - Matter remanded back - Appeal disposed of. - APPEAL NO: ST/89851/2014 & APPLICATION NO: ST/Stay-97998/2014 - - - Dated:- 30-1-2015 - Shri Ramesh Nair, Member (Judicial) For the Petitioner : Shri B. Kumar Iyer, Superintendent (AR) For the Respondent : Shri Kevin Shah, Chartered Accountant ORDER The appeal and stay petition are directed against Order-in-Appeal No: PD/STC/609/2014 dated 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Additional Commissioner is not covered under this explanation. Therefore, the learned Commissioner (Appeals) erred in allowing the appeal of the respondent. 4. Shri Kevin Shah, learned Chartered Accountant appearing on behalf of the respondent submits that the learned Commissioner (Appeals) in his findings has categorically dealt with the same explanation given at 5(B)(ec) under Section 11B and accordingly held that refund arose out of adjudication order dated 27/11/2009 and the refund gets matured only subsequent to the dropping of the demand by the said order. He relied upon the judgment in the case of Shri Ram Food Industries vs. Union of India 2003 (152) ELT 285 (Guj.) wherein it was held that substantial right to the refund arose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not covered under the explanation and therefore the respondent cannot seek any relief, I am of the considered view that the explanation covers actually all nature of order either passed by the adjudicating authority or any higher forum. Therefore, the learned Commissioner (Appeals) correctly interpreted the explanation and allowed the appeal of the respondent. The relevant finding of the Commissioner (Appeals) is reproduced below. 9. In the instant case, I find that the said refund claim for ₹ 5,13,964/- filed by the Appellant, has arisen as a consequence of the Order-in-Original NO.29/AS-29/2009-2010 dated 27.11.2009/01.12.2009 passed by the Additional Commissioner of Service Tax, Mumbai, and accordingly, the Appellant have fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equence of judgement, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgement, decree, order or direction. From the above, I find that the circumstances as mentioned in the Explanation in respect of relevant date given at (B) (ec) under Section 11B (1) of the Central Excise Act, 1944, are similar to those as given in the instant case as the said refund claim has arisen as a consequence of the Order-in-Original No.29/AS-29/2009-2010 dated 27.11.2009 / 01.12.2009 passed by the Additional Commissioner of Service Tax, Mumbai. Hence, the Explanation in respect of relevant date given at (B) (ec) under Section 11B (1) of the Central Excise Act, 1944, are applicable in the instant cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act,1994, and order that the same may be paid to them forthwith, 26. The subject appeal is allowed with all its consequential relief, as per law, to the Appellant. 7. From the above findings of the learned Commissioner (appeals) it is absolutely clear that the refund arose out of the adjudication order and the same was filed within three months from the date of such order and hence it is not time-barred. In view of the above discussion and findings of the learned Commissioner (Appeals), I do not find any infirmity in the impugned order. 8. From the records and on a query made by the Bench, it is apparent that test of unjust enrichment has not been passed either during adjudication of the refund or at the stage of lower ..... X X X X Extracts X X X X X X X X Extracts X X X X
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