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TMI Blog2020 (2) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... y Commissioner has stated that the appellants are remitting Service Tax under protest as the service recipients were not paying any Service Tax. This letter is sufficient to prove that Service Tax was paid under protest and once the Service Tax is paid under protest then as per proviso to Section 11B of the Central Excise Act, 1944, the bar of limitation will not be applicable and further the appellant had also produced sufficient proof on record to show that they have not collected the Service Tax from their recipients therefore the question of unjust enrichment will not be applicable. The impugned order rejecting the refund on time bar is not sustainable - appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 20975 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the period October 2004 to September 2013. The appellant claimed refund of Service Tax paid for the commission received by them under the category of Business Auxiliary Service provided as Commission Agent which has been exempted from payment of Service Tax up to 09.07.2004 vide Notification No.13/2003-ST dated 20.06.2003. Vide Notification No.8/2004-ST dated 09.07.2004, the exemption has been restricted to services provided by a Commission Agent in relation to purchase and sale of agricultural produce and vide Board s Circular No.143/12/2011 ST dated 26.05.2011, it has been clarified that processing of raw cashew and recovering kernel undertaken for, or on behalf of the clients by processing units are covered by the expression i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me barred. He further submitted that the Commissioner (A) has observed in Para 6.2 of the OIA that the claim of refund was never the subject matter of any litigation, as the amounts had been paid voluntarily by the appellant under the self-assessment scheme and that there is not a whisper of protest in these payments . He further submitted that the appellant has been agitating the demand of Service Tax on the commission earned on the buying and selling of cashew nuts and cashew kernel from the very beginning. The appellant had informed that the service receivers were not paying them Service Tax on the ground that cashew nuts and cashew kernel are agricultural products and hence exempted from payment of Service Tax. He further submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is a presumption that the Appellate Authority has agreed to the contention of the appellant as far as unjust enrichment is concerned. 5. On the other hand, learned AR defended the impugned order and submitted that bar of limitation as provided under Section 11B of the Central Excise Act, 1944 is applicable in respect of any refund filed under law. 6. After considering the submissions of both the parties and perusal of the material on record, I find that from the very beginning, stand of the appellant was that he is not collecting Service Tax from any of his customers and as per the Notification, the appellant is also not liable to pay Service Tax but in spite of that he was made to pay the Service Tax which the appellant paid und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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