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TMI Blog2021 (2) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... TCL was entitled to a portion of the consolidated royalty payment which Castrol would pay to Tata Motors Ltd. M/s Tata Cummins' portion of royalty was worked out by TML on the basis of proportion of engine oil used in TML engines received from Tata Cummins Ltd. Since the royalty depended on the actual number of engines consumed by TML during the year, the initial estimate of royalty as intimated by Tata Motors Ltd. for the year 2009-10 was Rs. 2,23,39,000/- and Rs. 2,56,00,000/- for the first half year and the second half year respectively in total Rs. 4,79,39,000/-, and the service tax liability amounted to Rs. 23,00,917/- and Rs. 26,36,800/- respectively and were discharged the same on 04.02.2010 and on 06.05.2010 in total Rs. 49,37,717/-, but after final calculation the actual number of engines was found to be less than the estimated number of engines. Hence, the royalty amount was reduced to Rs. 3,82,98,910/- and the service tax liability thereon amounted to Rs. 39,44,788/- which resulted in excess payment of Service Tax amounting to Rs. 9,92,929/- for which appellant had filed a refund claim before the competent authority on 20.04.2011 but the same was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... May '10 was also hit by time limitation of one year prescribed under Section 11B of the Central Excise Act, 1944. (iv) That the Commissioner (Appeals) has failed to appreciate that in absence of tax liability, the time period prescribed under Section of the Central Excise Act, 1944 will not apply. (v) That the Commissioner (Appeals) has failed to appreciate that in absence of reflection of provisioning in the statutory return as required and any other supporting documents excess service tax payment could not be established. 5. Hon'ble CESTAT, Kolkata vide Final Order No. 75027/2017 dated 10.01.2017 remanded the matter to the Commissioner (Appeals) with a direction to decide the matter afresh after examining the date of deposit of tax and the date of filing of the refund claim for deciding the limitation aspect. 6. In pursuance of the Hon'ble Tribunal's order dated 10.01.2017, personal hearing was held on 06.11.2019. Shri Akash Agarwal, CA attended the personal hearing on behalf of the appellant. He submitted that refund was filed on 20.04.2011 and a Deficiency Memo was issued on 18.05.2011. Hence the refund was within time limit. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 04.05.2010. The payment of Service tax was made in the month of May' 2010 for the provision made in the month of March 2010 because the Appellant and TML are Associate Enterprises, Appellant had discharged Service tax liability, in accordance with Rule 6 of Service Tax Rules, 1994 in the month of February 2010 and May 2010 on accrual basis although payment was not received from TML. The Final Calculation for Royalty to be paid by TML to the Appellant based on actual Number of Engines supplied by Appellant consumed during financial year 2009-10 was informed by TML to the Appellant. Finally, the Appellant had raised a Bill on TML for actual royalty payable on 27.07.2010 for financial year 2009-10. The Appellant had paid Service Tax in excess than actual payable and the fact remained that there was an excess payment of Service Tax amounting to Rs. 9,92,929/- related to revised Royalty claim receivable from TML during the period 2009-10. It is evident from the copies of debit entries made in Cenvat Account & GAR 7,s for payment of Service Tax / interest that the appellant has deposited the service tax on 06.05.2010 and the said deposit has not been denied or disputed by the adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denied to them merely on the ground that the same was not filed in the prescribed form. If the refund claim has not been filed on proper form or without necessary documents the Department can direct the appellants to file the same in proper prescribed from along with supporting documents. But as far as the time for filing the refund claim is concerned, it has to be considered from the date the refund claim was filed initially in the form not prescribed or without documents 5. The above approach of the Appellate Tribunal is in consonance with the settled principles of law and we see no reason to interfere, even if for the sake of argument it is assumed that we should have condoned the delay in filing the present appeal. The assessee had admittedly submitted the application within the prescribed time and if it suffers from any procedural irregularity the Department was under an obligation to require the assessee to submit the requisite documents. Refund is the right of the assessee and should not be taken away by the State especially with the approach of the kind that was adopted in the present case. The appeal is dismissed on merits." 12. I find that as per decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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