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TMI Blog2017 (8) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... these circumstances, we find that though clause of limitation under Section 11B would not be applicable in respect of the amounts covered by the demand show-cause notice issued to the appellant and dropped subsequently by the Commissioner as well as by the Tribunal, however, in view of the failure of the appellant to establish that they have not passed on burden of any other person, the said amount would have to be transferred to the Consumer Welfare Fund. Appeal disposed off - decided partly in favor of appellant. - Appeal No. ST/526/12 - A/88762/17/STB - Dated:- 27-7-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri Raymond C George, Advocate for Appellant Shri M.P. Damle, AC (AR) for Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me was sanctioned and credited to the Consumer Welfare Fund. It was held that the appellant had recovered the said amount from the customers. Aggrieved by the said order, the appellants are in appeal before Tribunal. 3. Learned Counsel for the appellants argued that the amount paid during investigation is deemed to have been paid under protest. It was argued that payment cannot be considered as voluntary payment as the appellant had contested the tax liability and ultimately an order was passed in favour of the appellant. It was argued that despite the fact that the appellant had paid Service Tax for the period 2002-06 voluntarily and even for the period after 2006, the appellant continued to pay Service Tax on regular basis, the show-ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A/2043/15/STB dated 15.7.2015. 5.1 Since the issue regarding leviability of Service Tax is finally settled, now the only issue is left to be examined the issue of limitation and unjust enrichment. 5.2 The impugned order invokes the limitation prescribed under Section 11B and rejected major part of the refund claim as barred by limitation. The Commissioner has observed as follows: - Refund claim for 1,27,59,926/- was filed on 10.03.2011 by the appellants before the Deputy Commissioner, Service Tax, Raigad Division. Refund was claimed as a consequence of Commissioner Central Excise, Raigads order No. 12/CSO/(12)/Commr/RGD/10-11 dated 10.12.2010, holding that auction charges adjusted towards warehousing charges cannot be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Act, 1944 made applicable to the Finance Act, 1994 by Section 83 thereof. However, it is seen that the matter before Tribunal related to demand for the period 2004 to 2009 and, therefore, only the said period can be considered for the purpose of refund. 5.3 The second issue that needs to be decided is if the provisions of unjust enrichment would be applicable to the instant case. It is seen that for the period 2002 to 2006, the appellant has paid Service Tax considering the amount of auction proceeds as cum-duty price. From 2006 onwards, the appellant also have paid Service Tax treating the auction proceeds as cum duty price. The appellants have also not made any provisions in their Balance-sheet during the said amount to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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