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TMI Blog2017 (2) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... by the letters the assessee contended that it was not liable to pay the tax, sought a clarification and protested about it being required to pay the amount under pressure from the Department indicates that the assessee made the payments under protest. The nature of the contents of the letter further establishes the same. The assessee referred to the provisions of law, analysed the same and expressly contended that it was not liable to service tax. In that view of the matter, it cannot be said that the payments were made voluntarily and without protest - appeal allowed - decided in favor of assessee. - STA-31 of 2015 - - - Dated:- 23-1-2017 - MR. S.J. VAZIFDAR AND MR. ANUPINDER SINGH GREWAL, JJ. For The Appellant : Mr. Ish Puneet Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it entered into agreements with purchasers. These were agreements to sell and not agreements of sale. It further contends that agreements of sale/conveyances were executed only after the occupation certificates in respect of the premises were issued by the authority concerned. 4. According to the appellant, the authorities under the Act, pressurized it to make payment of service tax under the Finance Act, 1994 despite the fact that service tax was not payable. By a letter dated 07.06.2006, the appellant informed the Assistant Commissioner, Central Board of Excise and Customs that it enters into agreements with the prospective buyers for the sale of flats in a residential complex at any stage of the construction or even prior thereto and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 009. Paragraph 3 thereof, reads as under:- 3. The matter has been examined by the Board. Generally, the initial agreement between the promoters/builders/develolpers and the ultimate owner is in the nature of agreement to sell . Such a case, as per the provisions of the Transfer of Property Act, does not by itself create any interest in or charge on such property. The property remains under the ownership of the seller (in the instant case, the promoters/builders/developers). It is only after the completion of the construction and full payment of the agreed sum that a sale deed is executed and only then the ownership of the property gets transferred to the ultimate owner. Therefore, any service provided by such seller in connection with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax. 9. The only issue as regards the question under consideration is whether the application for refund was barred by limitation under Section 11 B(1) of the Central Excise Act, 1944 which reads as under:- (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A as the applicant may furnish to estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evertheless. An act, including a payment can be made under protest in several ways. For the act to be under protest, it is not necessary that it be accompanied by the very words under protest . Whether an act is performed under protest or not must be determined on the basis on which it is performed. If the conduct indicates that it is not voluntary and is done out of compulsion it is under protest even within the meaning of these words in the second Proviso to section 118 (1) of the Act which we will refer to shortly. 11. The Tribunal by the impugned order held that the petitioner made the payments under protest. We see no reason to take a different view. A conjoint reading of the letters establishes that the payments were made under pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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