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TMI Blog2022 (3) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... vice tax payment need to be adjusted at a later stage. The date of adjustment has to be reckoned for the purpose of computing limitation. In the present case the fund has arisen from cancellation of the sale of flats and refund of amount to the customers. In my view this stage should be considered as adjustment of service tax hence, the one year period should be computed from the date of refund of amount made to their customers against cancellation of sale of flats. Reliance placed in the case of M/S. RAMESH KUMAR AGARWAL VERSUS COMMISSIONER OF CENTRAL EXCISE CENTRAL GST, JAIPUR-I [ 2021 (7) TMI 360 - CESTAT NEW DELHI ] where it was held that The period of one year, in the given facts and circumstances, shall reckon from 15.10.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime bar or otherwise. 2. Shri Kaushik Nahar, Learned Company Secretary appearing on behalf of the appellant submit that since the service tax payment stands finalized only when the customer has decided to terminate the sale of the flat and accordingly, the total value of flat along with service tax collected from the customers has been refunded that should be taken as relevant date in terms of Clause (eb) of Section 11B. Therefore, from the date of refund of amount to the customer the appellant have filed refund claim well within the period of one year. He also placed reliance on the tribunal judgment in the case of M/s Ramesh Kumar Agarwal vide final Order No. 51646/2021 dated 25.06.2021. 3. Shri Ghanshyam Soni, Learned Joint Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (b) .................... (c) .. (d) .. (e) .. [(ea) ] [ (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof;] [(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction;] From the above provision of clause (eb) of section 11B(B) it is clear that in the case where the service tax payment need to be adjusted at a later stage. The date of adjustment has to be reckoned for the purpose of computing limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof;] [(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction;] The aforesaid provision applies to present case 9. The date of adjustment in the present case is the date when the money received by appellant need to be refunded alongwith the amount of service tax. 10. Accordingly, I am of the opinion that the period of one year, in the given facts and circumstances, shall reckon from 15 10 2017 when appellant returned the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) for rejecting the refund claim are held to be against the appreciation of the relevant facts of the present case. The order, accordingly, is hereby set aside. However, the appellant is directed to return the amount to Shri K.K. Agarwal within 15 days of receiving the said amount from the Department against the intimation thereof to the Department. The Department is held at liberty to take appropriate action, in case of non-compliance. Appeal, accordingly, stands allowed. 4.2 As per my above discussion and the judgment cited above the appellant s refund claim is not time bar. 5. Accordingly the appellant is entitled for the refund. Accordingly, the impugned order is set aside and Order in original is upheld. The appeal is all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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