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TMI Blog2023 (7) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... s nothing but the amount paid under protest - the ground of rejecting this amount is that the same cannot be an amount covered under section 35F of Central Excise Act. Hence, section 11 B of the Act shall be applicable for refund of this amount. This section provides a period of limitation and the refund claim is beyond the said period of limitation. The amount of pre-deposit being an amount under section 35 F that the refund thereof under section 35 FF has been ordered by the adjudicating authorities below. However, the amount of Rs.12,00,290/- with interest is not an amount of pre-deposit - No doubt, Hon ble Apex Court in the case of Mafatlal Industries has held that no claim of refund of any duty shall be entertained except in accorda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NA GUPTA, MEMBER (JUDICIAL) Mr. Ajay K. Mishra, Advocate for the appellant Mr. V.J. Saharan, Authorized Representative for the Respondent ORDER Present appeal has been filed against order in appeal No.239/2022 dated 17.11.2022. The facts succinctly are as follows:- That the appellants have been registered for providing work contract services and construction other than residential complex services. During the audit, Department observed that work contract services have been provided by the appellant in the capacity of a sub-contractor of M/s. NBCC. The appellant however, had not paid any service tax on the belief that the services were exempted vide entry at Sl. No.12A of Notification No.25/2012-ST dated 20.06.2012. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal under challenge. Being aggrieved the appellant is before this Tribunal. 3. We have heard Shri Ajay K. Mishra, ld. Counsel for the appellant and Shri V.J. Saharan, ld. Authorised Representative for the Revenue. 4. Ld. Counsel for the appellant has mentioned that the amount of Rs.12,00,290/- is an amount which was paid during the investigation when the audit tem impressed upon for the discharge of the liability. The said amount was paid as a partial discharge of the liability. It is impressed upon that the amount paid pending investigation has been held to be an amount as paid under protest and it is nothing but a revenue deposit. Hence, Section 11B which is about the refund of duty will not be applicable to the aforesaid amount. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-CESTAT Chandigarh LB Miles India Limited. Appeal is accordingly, prayed to be dismissed. 6. Having heard the parties at length and perusing the record, I observe and hold as follows:- That the amount in question i.e. of Rs.12,00,290/- alongwith interest of Rs.35,342/- was deposited by the appellant on 09.08.2015, at the stage of investigation itself towards the partial discharge of the liability pointed out by the audit team. Hon ble Apex Court in Mafatlal Industries vs. Union of India reported as 1997 (89) ELT 247 (S.C.) (para 83) has held that the amount paid pending investigation is nothing but the amount paid under protest. The said decision has been followed by this Tribunal in the case Dugger Fibers Pvt Ltd. Vs. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es (supra) has held that no claim of refund of any duty shall be entertained except in accordance with the provisions of the statute and every claim of excise duty can be made only under and in accordance with section 11 B in the forms provided by the Act. But present is observed to not to be the case of refund of the duty. The Department cannot retain the same and the amount has to be refunded alongwith the interest to the assessee. 8. I further observe that even if seen through the prism of section 11B of Central Excise Act the period of one year mentioned therein has to reckon from the relevant date. Explanation B in Clause (5) of Section 11B of the Act defines Relevant Date. Sub-clause (ec) thereof clarifies that where the duty becom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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