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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 ..... . 9/2009-ST, since such service providers had issued invoices for the entire month of March 2009. The appellant has not challenged this Order-in-Original and hence this order has attained finality. If the appellant is aggrieved against the order for rejecting the refund for the two days, they would have filed appeal against the order dated 24.04.2010. Instead, the appellant has chosen another route and filed a fresh refund claim for the same period, which has already been rejected by the Order dated 21.04.2010. Since no appeal has been filed against the order-in-original dated 21.04.2010, it attained finality. 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 services were rendered when Notification 4/2004-ST was in operation. If the findings of the adjudicating authority is wrong or not acceptable to them, the only recourse available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s R on 15.09.2009. In respect of the two refund claims, the Appellant was denied proportionate refund of Rs. 75,038/- (Appeal No. 1) and Rs. 2,19,447/- (Appeal No. 2) vide Order-inPage Original No. (R)2 3/Refund/S.Tax/SBP-I/2010 dated 21.04.2010, respectively, pertaining to 2 days viz. 01.03.2009 and 02.03.2009, prior to issuance of Notification No. 9/2009-ST, since such service providers had issued invoices for the entire month of March 2009. 2.3. Being aggrieved by rejection of part of the refund, the Appellant filed two fresh refund applications on 08.07.2010, 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 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 21.04.2010, were issued post 03.03.2009, which is the effective date of Notification No. 9/2009. However, by virtue of the said Order-in-Original dated 21.04.2010, the proportionate service tax pertaining to 01.03.2009 to 02.03.2009 became an amount of tax which was collected without authority of law, inasmuch as Notification No. 4/2004-ST which was in force during such period, provided for outright exemption from service tax. 3.1. Further, Section 26(1) (e) of the SEZ Act provides that service tax is not payable on taxable services provided to SEZ Developer or Unit. Thus, once an exemption has been granted, service tax is not liable to be paid. Despite the exemption, if any service tax is paid, such service tax can be said to have been collected without authority of law. Therefore, such service tax paid without authority of law, ought to be treated as a deposit with the Department. Accordingly, the refund claim of such amount would fall outside the purview of Section 11B of the Excise Act and no period of limitation would apply to such claim. This is specifically because, the Appellant s eligibility to exemption from service tax is not disputed. 3.2. In support of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Since no appeal has been filed against the Order-in-Original 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-in- Original No. (R)2 3/Refund/S.Tax/SBP-I/2010 dated 21.04.2010, sanctioning part of the refund claims and rejected refund pertaining to 2 days viz. 01.03.2009 and 02.03.2009, prior to issuance of Notification No. 9/2009-ST, since such service providers had issued invoices for the entire month of March 2009. The appellant has not challenged this Order-in-Original and hence this order h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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