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TMI Blog2021 (11) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11B (5) e(c). Doubt may arise at this point as to what kind of order would make the appellant entitled to claim a refund? Admittedly, in the instant case there is no direction for payment of refund except a finding that the said amount of ₹ 7,65,445/-, as a component of tax under Reverse Charge Mechanism, was not payable. Explanation of relevant date at 11 B (ec) clearly indicates that if duty becomes refundable as a consequence of order/judgment , then the period of one year is to be calculated from the date of the order/judgment. Therefore, without prejudice to the submissions made for and against the issue, it can invariably lead a rational human being to a conclusion that there is no requirement of an express direction f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reverse charge mechanism against services availed from overseas European company. The respondent-department raised demand for payment of interest of ₹ 22,166/- on the services tax component of ₹ 7,65,445/- and issued show cause that was adjudicated against the appellant who went on appeal before the Commissioner (Appeals), Central Excise, Pune-III. The Commissioner (Appeals) had set aside the interest demanded through show cause and confirmed through adjudication in its order dated 31st October, 2012 holding that no service tax was leviable on the said service prior to 18.04.2006. Appellant sought for refund of the said service Tax of ₹ 7,65,445/- on 14.10.202013 through refund application that was again adjudicated by De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LT 525 (Bom.), 3E Infotech 2018 (18) G.S.T.L. 410 (Mad.), Geojit BNP Paribas Financial Services 2015 (39) STR 706 (Ker.), he also argued that service tax since was paid on account of mistake of fact and not on account of mistake of law, the same is held to be refundable in the decisions referred above for which the appellant s appeal to allow refund to it is required to be disposed of favourably by set aside the order passed by the Commissioner (Appeals). 4. In response to such submissions, learned AR for the respondent-department Mr. S.K. Hattangadi supported the reasoning and rationality of the order passed by the Commissioner (Appeals) and with reference to the judicial decisions reported in 2014 (34) S.T.R. 562 (Bom.) in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be the date of passing of such order which in the instant case was 31.10.2012. Refund application, if any, is filed before 30.10.2013 should have been considered as filed within one year of the relevant date. This has been ignored by the adjudicating authority and the Commissioner (Appeals) in the case of appellant who filed the refund application on 14.10.2013 which is almost 16 days before completion of one year of the order passed by the appellate authority. 5.1 Doubt may arise at this point as to what kind of order would make the appellant entitled to claim a refund? Admittedly, in the instant case there is no direction for payment of refund except a finding that the said amount of ₹ 7,65,445/-, as a component of tax unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment that if duty is declared as illegal, unconstitutional in respect of any other person say in respect of Y then X cannot claim after passes of long years though he had fought a legal battle up to a certain stage and subsequently abandoned it (para-22 of the Mafatlal Industries Ltd. judgment). However, in the instant case it is in respect of appellant itself the said order that duties was not leviable has been passed that arose as a consequence against demand of interest on the said component of duty that was paid by the appellant, may be under mistake of fact. Hence the order: The Order The appeal is allowed and the order passed by the learned Commissioner (Appeals) in Order-in-Appeal No. PUN-SVTAX-000-APP- 0064-15-16 dated 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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