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TMI Blog2024 (5) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, there being no appeal against this finding of the Commissioner (A) by the respondent, the issue with regard to time bar stands settled and cannot be reopened. It is an admitted fact that the respondent had paid the service tax amount based on audit letter dated 16.11.2016 on consulting charges paid in foreign currency to M/s. Aluforms Korea Co. Ltd., Korea under reverse charge mechanism. The respondent vide their letter dated 03.04.2017 had intimated the Assistant Commissioner of Central Excise and Service Tax in terms of the provisions of Section 73(3) of Chapter V of the Finance Act, 1994, we request that the demand show-cause notice may not be issued to us since we have discharged the service tax liability along with the applicable interest and penalty at 15% on the service tax amount . Therefore, there is no question of duty being paid under mistake of law or to be held ultra vires. Thus, the tax being paid under service tax category under the relevant provisions and there is nothing declared unconstitutional or under mistake of law, the amount is necessarily to be considered as tax and refund has to be sanctioned as per the provisions specified u/s 11B of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Hon ble High Court CCE, Bangalore III Vs., Motorola India Pvt. Ltd.: 2006 (206) E.L.T. 90 (Kar.) concluded that the amounts paid by the respondent is to be treated as a deposit towards tax, unless it is confirmed by the authorities as payment of tax and hence, the provisions of Section 11(B) of Central Excise Act, 1944 relating to limitation would not be applicable. Accordingly, the refund was allowed. The Revenue is in appeal against the above order. 4. The learned Authorized Representative (AR) for the Revenue submits that the appellate authority proceeded to examine the limitation issue from different angle which was not examined by the original authority. The appellate authority held that the department had not issued the FAR and therefore, the payments are to be treated as deposits and not as tax payment and therefore, Section 11(B) is not applicable. It is submitted that the decision of the appellate authority is not acceptable as FAR is not a mandatory part of the audit and under Rule 22 of the Central Excise Rules, 2002, there are no such provisions where FAR is mandatory. In fact, the audit observation was communicated to the respondent vide letter dated 16.11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent had filed letters dated 24.03.2020, 30.03.2020 seeking the status of their refund for which they were directed to file a fresh refund claim on 09.09.2020 which was rejected as barred by limitation. 6.1 It is also submitted that the department itself stated that they have not concluded the audit observation and hence, the amounts paid by them was only a mistake. The respondents claim that FAR is not mandatory is not acceptable since FAR is a crucial integral document of the audit proceeding which either confirms or drop the audit proceedings and the same is to be communicated to the respondent. The respondent submits that Excise Audit Manual 2008 elucidates the requirement of the FAR, prescribes the manner, use and method of the preparation and the issue of the FAR. Referring to the Board Circular No.985/9/2014-CX dated 22.09.2014 mentions that the copy of the FAR is to be issued to the respondent which concludes the audit proceedings. Therefore, the finding of the appellate authority in the impugned order that the absence of FAR, the amount is to be treated as deposit is correct, and the appeal needs to be dismissed. 6.2. It is further submitted that the respondent was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts. As rightly stated by the revenue the Audit Manual basically lays down the guidelines for the audit officer and it also is a document for assessing the performance of an audit officer. The Commissioner (A) at Para 11.1 himself notes that the appellant vide letter dated 03.01.2017 and 03.04.2017 addressed to the Audit Commissionerate Mysore where in they have informed of the payments made by them and have requested for the closure of proceedings in terms of provisions of Section 73(3) of the Finance Act, 1994. He also observes that in the said letters the appellant had only mentioned that they had made payment of service tax, interest and penalty and hence, sought for closure of the audit observations without issuance of a show-cause notice. Thus, from the above observations, it is clear that the respondent had paid the service tax amount along with interest and requested for waiver of show-cause notice as per the relevant provisions. 9. The Supreme Court of India Salonah Tea Company Ltd. Etc. vs. Superintendent of Taxes, Nowgong Ors. etc. 1988 (33) E.L.T. 249 (S.C.) decided on 18-12-1987 observed that: 5. In this case indisputably it appears that tax was collected without the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the demand show-cause notice may not be issued to us since we have discharged the service tax liability along with the applicable interest and penalty at 15% on the service tax amount . Therefore, there is no question of duty being paid under mistake of law or to be held ultra vires and hence, the case laws relied upon by the Commissioner (A) in the impugned order are not applicable in the facts of the case. 11. In the case of Mafatlal Industries Ltd. vs. Union of India: 1997 (89) E.L.T 247 (SC), the Hon ble Supreme Court Observed that: 68. ..In the face of the express provision which expressly declares that no claim for refund of any duty shall be entertained except in accordance with the said provision, it is not permissible to resort to Section 72 of the Contract Act to do precisely that which is expressly prohibited by the said provisions. In other words, it is not permissible to claim refund by invoking Section 72 as a separate and independent remedy when such a course is expressly barred by the provisions in the Act, viz., Rule 11 and Section 11B. For this reason, a suit for refund would also not lie. Taking any other view would amount to nullifying the provisions in Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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