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TMI Blog2008 (1) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Technical) N. Viswanathan, Adv. for the Appellants N.J. Kumaresh, SDR for the Respondent [Order] - In this application M/s. Wardex Pharmaceuticals (P) Ltd, Chennai seek waiver of predeposit of Rs.2,15,463/- along with interest and stay of recovery of the same till the disposal of the appeal. After hearing both sides on the stay petition, the requirement of predeposit is waived and the appeal itself is taken up for disposal. 2. In the wake of Finance Act, 2000 enacting provisions to recover service tax on Goods Transport Operator (GTO) service from the availers of the service retrospectively, notice dated 28.6.2002 was issued to M/s. Wardex Pharmaceuticals (P) Ltd. proposing to demand service tax of Rs.2,15,463/- on G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax on the GTO service. They also produced a copy of the permanent certificate issued by the Director of Industries and Commerce, Government of Tamil Nadu certifying their status as SSI under cover of the appellant's letter dt.15.7.2002. The Assistant Commissioner held that the appellants were eligible for the relief extended to the SSI units in terms of Notification No.43/97-ST as amended. He held that the claim of the appellants was not hit by limitation. As the assessee had paid service tax on 12.11.2003 for freight incurred in 97-98, he found that the bar of unjust enrichment also did not apply to the claim. Accordingly, he allowed the refund of Rs.2,12,463/- vide his Order-in-Original No.94/06 (Refund) dated 8.11.2006. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned amount was occasioned at the instance of the department. As the appellants had claimed that they were exempted from the impugned levy, they being a SSI unit, the amount paid was under protest and limitation did not apply to their claim. The impugned order ordering recovery of the refund sanctioned was on the sole ground that the original authority had sanctioned time barred refund claim. 6. Ld. Counsel cited the following decisions of the Tribunal in support of the argument that the limitation did not apply to their claim. (i) CCE, Chennai-III Vs. Rane Engine Valves Ltd. 2003 (162) ELT 417 (Tri. Chennai) (ii) CCE, Raipur Vs. Indian Ispat Works (P) Ltd 2006 (3) STR 161 (Tri. Del) 7. Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice. Following the ratio of the judgment of the High Court of Gujarat at Ahmedabad in the case of Parle International Ltd. Vs. UOI [2001 (127) ELT 329 (Guj)], the Tribunal decided that the amount deposited by the appellants during adjudication proceedings had to be treated as deposit and not duty. It was ordered that payment under protest or doctrine of Unjust Enrichment did not apply to such payment. The Tribunal ordered refund of the amount deposited by the party and claimed more than a year later. Hence the ratio of this decision clearly supports the claim of the appellants in the instant case. 10. In CCE, Raipur Vs. Indian Ispat Works (P) Ltd (supra) the facts of the case were that the appellants t therein, a SSI unit eli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no bar to the return of such amounts. The rejection of refund application was, therefore, not correct. 12. In the result, the appeal is allowed. The amount of service tax collected from the appellants during the periods 1998-99 and 1999-2000 shall be refunded to the appellants forthwith." 13. The judicial authorities cited above support the finding of the original authority that the refund claim by the appellants was not barred by limitation. The amount was paid under protest. In any case, the amount was not to be treated as tax as the same was collected without the authority of law. In the circumstances, the appeal filed by M/s. Wardex Pharmaceuticals Ltd is allowed. The stay application also gets disposed of. (Order pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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