9911796707
TMI Blog2018 (2) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... er the category of Business Auxiliary Service . They filed a refund claim with the Department on 01.09.2014 for an amount of Rs. 35,05,699/- (Rupees Thirty Five Lakhs Five Thousand Six Hundred and Ninety Nine only) on the ground that the appellant had erroneously paid the service tax on services exported in terms of Rule 3(2) of the Export of Service Rules. The Assistant Commissioner granted the refund of Rs. 23,23,893/- (Rupees Twenty Three Lakhs Twenty Three Thousand Eight Hundred and Ninety Three only) and rejected the balance refund claim of Rs. 11,81,804/- (Rupees Eleven Lakhs Eighty One Thousand Eight Hundred and Four only) on the ground of limitation including Section 11B of Central Excise Act 1944. Aggrieved by the said order, appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as shown in column No. B 1.9. He further submitted that once it is shown in the ST-3 return as an advance then it cannot be termed as tax paid to the Revenue but it is merely a deposit and subsequently when it was found that he was not liable to pay the service tax then he filed the refund and subsequently part of the refund was granted by the Assistant Commissioner which fall within the period of one year of limitation. But the refund of Rs. 11,81,804/- (Rupees Eleven Lakhs Eighty One Thousand Eight Hundred and Four only) was rejected on the ground of limitation under Section 11B of the Act. In support of his submission, he relied upon the decision of the Hon'ble Supreme Court in the case of Vedanta Limited Vs. CCE 2017 (345) E.L.T. 577 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not as service tax and the same was also shown in the ST-3 returns as an advance of service tax clearly shows that the said amount was paid as a deposit and not as service tax. Therefore, in view of the fact that the service tax was not paid as tax but as an advance, therefore the period of limitation as prescribed under Section 11B of the Central Excise Act will not be applicable as held in the various decisions cited supra. In view of this, I am of the considered view that the impugned order is not sustainable in law and therefore, the same is set aside by allowing the appeal of the appellant with consequential relief, if any.
( Operative portion of the Order was pronounced in Open Court on 09/01/2018 ) X X X X Extracts X X X X X X X X Extracts X X X X
|
