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TMI Blog2017 (10) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... and there has been an excess payment of the service tax liability, which is correctly claimed by the appellant on 30.6.2008 by filing a refund application. When the adjudicating authority has himself held that tax liability for the period October 2004 to May 2005 has been paid in excess, and passed an adjudication order on 11.4.2008, both the lower authorities, in this case, cannot hold that the appellant has filed a refund claim belatedly. It is very clear from the adjudication order that the tax liability of the appellant has been finalized by the authorities on 11.4.2008 and having filed the refund claim on 30.6.2008 to my mind it is within three months from the date of adjudication - refund is rightly filed within time as provided unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005, hence it is hit by limitation. 5. On perusal of the records, I find that the show-cause notice dated 13.4.2006 was issued to appellant demanding the service tax liability of approximately ₹ 1.19 lakh. The said show-cause notice also sought to demand interest and also to impose penalties. The said show-cause notice was adjudicated by the Commissioner of Central Excise and Customs, Calicut Commissionerate and by Order-in-Original No.2/2008 dated 11.4.2008, the adjudicating authority disposed of the show-cause notice by confirming the demand of ₹ 3,51,936/- as Education Cess holding that during the pendency of the proceedings appellant has paid excess amount of ₹ 4,66,091/-. The said findings are reproduced herein b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total amount paid ₹ 10,91,57,087/- Rs.16,82,291/- 5. Amount short-paid- Rs.3,51,936/- 6. Amount paid in excess Rs.4,66,091/- As may be seen, the assessee had adjusted a portion of their Service Tax liability by making adjustments in their CENVAT credit account which has been verified and found to be in order. As regards Education Cess, there is short-payment of ₹ 3,51,936/-. M/s. BSNL have paid Service Tax in excess and for this reason, I find that there exists no intent on their part of willfully evade payment of Education Cess. As such a penalty under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n finalized by the authorities on 11.4.2008 and having filed the refund claim on 30.6.2008 to my mind it is within three months from the date of adjudication. I find that the refund is rightly filed within time as provided under Section 11B of the Central Excise Act, 1944 which is made applicable to the refunds under Finance Act, 1994. 5.1 I also find that the learned counsel s reliance on the judgment of the Hon ble High Court of Bombay in the case of CCE, Thane-I vs. Clariant (I) Ltd.: 2015 (319) STR 646 (Bom.) is correct and ratio of the said decision of the High Court is in paragraph 9 which I reproduce below: 9. With the assistance of the learned counsel appearing for parties, we have perused the appeal paper book as also the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o that only if the refund of duty made under protest a refund of duty can be sought. Even if it voluntarily paid refund can be sought provided, the application is made in terms of the second Proviso to Section 11B (1) of the Act. If the computation of the tax by assessee in this case had been accepted and in 1997 itself, there was no question of claiming refund. Since the revenue did not accept this payment as clearance of the liability to pay duty in accordance with law it issued show cause cum demand notice. That notice demanded the sums over and above the payment made by the assessee in November and December 1997. That demand was required to be adjudicated and was indeed adjudicated by the competent authority under the Central Excise Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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