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TMI Blog2022 (5) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... truction of 12 +48 flats at 1st Batalian SAF, Indore in the year 2015-2016. Later, it was clarified that construction services were exempted which were provided to MP Police Housing Corporation. and that the department had not charged any service tax. In view thereof the appellant moved an application dated 11.8.2020 seeking the refund of the aforesaid amount of Service Tax paid on 14.3.2016. The said application was rejected vide Order-in- Original No. 01/2020 -2021 dated 20.10.2020. Appeal thereof has been rejected vide order under challenge. Being aggrieved the appellant is before this Tribunal. 3. I have heard Shri Krishan Garg, learned Counsel for the Appellant appearing for the appellant and Ms Tamana Alam, learned Authorised Representative appearing for the Department 4. Learned Counsel for the appellant has mentioned that the amount in question was deposited under the mistake. The appellant was not otherwise liable to pay the Service Tax which was deposited due to lack of clarity. It is submitted that since the said amount was not the liability, i.e. it was not tax, hence has wrongly been covered under section 11B of Central Excise Act for time bar. The said provision has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of [duty of excise and interest, if any, paid on such duty] as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the [Principal Commissioner of Central Excise or Commissioner of Central Excise]; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the [duty of excise and interest, if any, paid on such duty] paid by the manufacturer, if he had not passed on the incidence of such [duty and interest, if any, paid on such duty] to any other person; (e) the [duty of excise and interest, if any, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se as (i) an educational, (ii) a clinical, or (iii) an art or cultural establishment; or (c) a residential complex predominantly meant for self-use or the use of their employees or other persons specified in the Explanation 1 to clause (44) of section 65 B of the said Act; under a contract which had been entered into prior to the 1st March, 2015 and on which appropriate stamp duty, where applicable, had been paid prior to such date : provided that nothing contained in this entry shall apply on or after the 1st April, 2020;" 9. There is no denial to the fact that service in question were rendered by the appellant in favour of the contract with M P Police Housing Corpn. Ltd. dated 30.6.2014 i.e. the contract was prior to 1.3.2015. Hence, irrespective the construction was raised during the year 2015-16, the exemption to the liability as introduced vide Notification No. 9/2016 is very much applicable to the impugned service. This perusal makes it abundantly clear that the appellant was not liable to pay Service Tax for rendering the services in question. Consequently, it is held that the amount of Rs.4,78,222/- was not the amount of Service Tax. It was merely a deposit bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d period. The appellants paid the duty of Rs 4,71,197/- in RG 23-A, dated 30-9-97 as directed by the preventive team of Central Excise Officers. However, the goods were received back subsequently and hence they filed refund application. The question is as to whether the Commissioners has power to condone the delay in a circumstance when the inputs were received after a period of 60 days. The Commissioner has noted that the proviso of Rule 57 was amended to 180 days and found that this is only a condonable offence. Therefore, he noted that the amount deposited was required to be refunded. He also noted that the assessee had deposited the amount only on the insistence of preventive officers. Therefore it is to be construed as a deposit under protest. On similar facts in the cited judgments, such deposits are treated as deposits made 'under protest'. Further more, the Apex Court in the case of Mafatlal Industries Ltd. v. UOI [1997 (89) E.L.T. 247(S.C.)] has clearly ruled that if duty deposits are made during investigation, then it is to be construed as deposit made under protest. The order passed by the Commissioner is legal and proper and there is no infirmity in the same. The appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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