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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 ..... ated 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 being made by the appellant in view of the ongoing confusion about the liability. The law with respect to the deposits being made by the assessee due to mistake either of the fact or of law is no more res integra to the effect that section 11B of Central Excise Act is not applicable to such deposits. Time bar of said section cannot be invoked while refunding the amount of deposit. Appeal allowed - decided in favor of appellant. - SERVICE TAX APPEAL NO. 51035/2021 - FINAL ORDER No. 50426 /2022 - Dated:- 10-5-2022 - MRS RACHNA GUPTA, MEMBER (JUDICIAL) Shri Krishan Garg, Advocate for the Appellant Ms Tamana Alam, Authorised Representative for the Department ORDER P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty therein, the appeal is prayed to be dismissed. 6. After hearing the rival contentions it is observed and held as follows: The claim of refund has been rejected invoking the time bar under section 11B of Central Excise Act. Section reads as under: SECTION [11B. Claim for refund of [duty and interest, if any, paid on such duty]. - (1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] may make an application for refund of such [duty and interest, if any, paid on such duty] to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [one year] [from the relevant date] [[in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of [duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such [duty and interest, if any, paid on such duty] had not been passed on by him to any other person : Provided that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of [duty and interest, if any, paid on such duty] has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (4) Every notification under clause (f) of the first proviso to subsection (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order;] [(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;] (f) in any other case, the date of payment of duty.] 7. Perusal makes it clear that section is applicable for the refund of such an amount which can be called as duty/tax. Hence the moot controversy in the present case is: whether the amount of Rs.4,78,222/- as was deposited by the appellant on 14.3.2016 was the amount of duty/tax. 8. Apparently and admittedly the said amount was deposited under the wrong impression of appellant being the liable to Service Tax for providing the construction service to M P Police Housing Corpn. Ltd. There is no denial to the fact that these services were exempted from the tax liability till March 2015 under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of deposit. 10. I place reliance on M/s. Parle Agro Pvt Ltd. reported as (2021-TIOL-306-CESTAT-ALL) and also endorse the following findings: 30. In the present case, the provisions of section 11B of the Excise Act would not be applicable. This is for the reason that the appellant was not claiming refund of duty. The applicant, as noticed above, had claimed refund of the revenue deposit. Such a finding has also been clearly recorded by the Tribunal in the order dated 31.01.2017, which order has attained finality. 31. Section 11D of the Excise Act deals with duties of excise collected from the buyer to be deposited with Central Government. It provides that every person who is liable to pay duty and has collected any amount in excess of the duty assessed from the buyer of such goods in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government. 32. Section 11DD of the Excise Act deals with interest on the amount collected in excess of the duty. It provides that where an amount has been collected in excess of the duty from the buyer of such goods, the person who is liable to pay such amount shall, in ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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