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TMI Blog2024 (6) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 passed by the Commissioner of (Appeals), Bhubaneswar, Odisha, involving refund amount of Rs. Rs. 75,038/-. Service Tax appeal ST/75027/2013 has been filed against the same Order-in Appeal, involving refund amounting to Rs. 2,19,447/-. As the issue involved in both the appeals are the same, they are taken up together for decision by a common order. 2. M/s. Vedanta Aluminium Ltd. ('he Appellant') is located in SEZ and is engaged in the business of manufacturing aluminium products. In the month of March 2009, the Appellant received various input services in the nature of works contract. All such services were duly utilized by the Appellant to undertake authorized operation in SEZ. The Appellant paid the consideration along with the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by submitting that in respect of refund pertaining to 01.03.2009 and 02.03.2009, the Appellant was eligible for such refund in accordance with Notification No. 4/2004-ST, since tax was per se not payable even for the said period. 2.4. The Appellant was issued a Show Cause Notice dated 19.08.2010 proposing to deny such refund, on the ground of limitation and various other grounds. The Notice was adjudicated and the refund claims of Rs. 75,038/- and Rs. 2,19,447/- were rejected vide Orders-in-Original No. (R) 31&32/REFUND/S.TAX/SBP-I/2010 dated 30.12.2010 on the following grounds: a. The taxable services merit exemption under Notification No. 4/2004-ST. However, such notification does not provide for grant of refund. Further, since the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant's refund claim does not involve refund of any amount paid under protest, limitation of one year prescribed under Section 11B is strictly applicable. Hence, refund claim is time barred. This is because, Notification 4/2004-ST does not provide for claiming refund, and hence, refund can be said to have been claimed only under Section 11B of Excise Act. Since the claim is filed beyond the limitation period of one year provided under Section 11B, thus, it is not admissible. 2.7. Being aggrieved against the impugned Order-in-Appeal, the Appellant has filed the instant appeal before this Tribunal. 3. The appellant submits that in the instant case, all the invoices for the month of March 2009, for which proportionate refund was den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96 (Kar.) c. 3E Infotech v. CESTAT, CCE (Appeals-I), 2018 (18) G. S. T. L. 410 (Mad.) d. Delhi Metro Rail Corporation Ltd., 2023-VIL-644-DEL e. Bansal Biscuits Pvt. Ltd. v. CCE & ST, Patna, 2023 (11) TMI 615 - CESTAT Kolkata 3.3. Further, the appellant submits that even if the exemption is not initially claimed by an assessee, the same can be claimed subsequently by way of refund: a. Mazgaon Docks Ltd. v. CC, Mumbai, 2006 (202) E.L.T. 706 (Tri. - Mumbai)[Pg. 47-48 of the Compilation] b. CCE v. Vikrant Tyres Ltd., 1992 (58) E.L.T. 224 (Tribunal) Thus, such amount paid under mistake and collected without authority of law ought to be refunded since it is not disputed that the Appellant was not liable to pay the same. 3.4. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al dated 21.04.2010, the order has attained finality. The appellant cannot choose another route and filed a fresh refund claim which has already been rejected by the Order dated 21.04.2010. Accordingly, he submits that the refund claims have been rightly rejected by the adjudicating authority. 5. Heard both sides and perused the appeal documents. 6. We observe that as per Notification No. 9/2009-ST dated 03.03.2009, the Appellant filed two refund claims of service tax paid to the works contract service providers of Rs. 45,06,130/- (Appeal No. 1) and Rs. 1,00,33,793/- (Appeal No. 2) in respect of such input services received for authorized operations of SEZ unit from 03.03.2009 to 19.05.2009. The Ld. adjudicating authority passed the Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has attained finality. Thus, the fresh refund claim filed by the appellant is for the same period for which the claim has already been rejected and the rejection has attained finality. In view of the above, the decisions cited by the appellant are not relevant to the facts and circumstances of the present case. 6.3. We also observe that the appellant themselves claimed that they have paid the consideration after 03.03.2009 i.e., from 14.04.2009 to 10.06.2009 and 24.04.2010 to 25.06.2010. Thus, in their own admission, the invoices were not issued during the period when Notification 4/2004-ST was in operation. The finding of the adjudicating authority in the impugned order dated 21.04.2010 cannot be a reason for them to state that the servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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