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TMI Blog2024 (8) TMI 1151X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed the said amount from the appellant company which cannot be passed on since the appellant company itself has deposited the amount with the state exchequers. It is a case of dual payment. The other party namely TDS Management has not moved any application for refund. In the circumstances, the refund of the appellant-company cannot be denied solely on account of delay which has actually not occurred as it is from the date of knowledge. The respondents are directed to refund the amount of Rs. 4,46,187/- deposited by the appellant-company along with interest. The refund shall be released within six months from today - appeal allowed. - HON BLE MR. JUSTICE SANJEEV PRAKASH SHARMA AND HON BLE MR. JUSTICE JAGMOHAN BANSAL Present For the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with application in the required format were also deposited on 28.12.2016, as demanded by the respondents. Copies of the challan reflecting that the amount had been deposited twice by the appellant and service provider were also supplied as demanded by the respondents vide letter dated 02.01.2017. However, the applicant-company was conveyed on 12.04.2017 of an order dated 06.04.2017, rejecting their claim mentioning the refund application to be belated and beyond limitation. 3. Respondents reasoned that the party had filed the refund claim on 28.12.2016 and service tax payments were made by the company on 29.06.2015, 06.07.2015 and 15.09.2015, therefore, refund claim is time barred as the claim was submitted after time limit of one y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as per Annexure A/1 on 30.08.2016 and a second application was filed on 29.09.2016, whereafter, on 03.10.2016, the Deputy Commissioner, returned back the file to the department instructing the appellant s company to file it in a particular format of Form-R. The subsequent application under Form-R was therefore submitted on 28.12.2016. Thus, it cannot be said that the refund was highly belated and liable to be rejected. Learned counsel relies upon the judgment of the Madras High Court in the case of M/s 3E Infotech, 11 B/1 2nd Floor, New Street vs. Customs, Excise and Service Tax Appellate Tribunal 2018 (18) GSTL 410. He also relies on the judgment of the Bombay High Court in the case of Parijat Construction vs. Commissioner of Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uth 2022 (61) G.S.T.L. 355 (Mad.) and Sarita Handa Exports (P) Ltd. vs. Union of India 2015 (321) E.L.T. 434 (P H). 9. We have considered the submissions. 10. Section 11B of the Act, 1944, deals with cases relating to refund of duty of excise and interest which provides for such application to be filed before the expiry of one year from the relevant date. It would be apposite to quote relevant extracts of Section 11B of the Act, 1944:- Section 11B. Claim for refund of duty and interest, if any, paid on such duty :- (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such [duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision as noticed above, it is evident that persons seeking refund, may make an application within one year from the relevant date. In the present case, tax has been deposited twice, one by the service provider and one by the appellant and therefore, the demand for refund was made by the appellant on coming to know about dual deposit of the service tax. It is also an admitted position that there is no liability of the appellant to pay the service tax. 13. The sole ground to deny the appellant-company from refund of the tax is that the application for refund in the correct format had been moved after one year has elapsed. 14. The question which arises for consideration of this Court is whether one year period would be determined mechanicall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not been noticed both by the authorities concerned as well as the appellant authority and this Court finds the orders passed by them therefore, as erroneous. 17. The cases cited at bar and noted above are found to be on their own facts and circumstances and will have to be examined on facts of each case. This Court is of the firm view that in the case of Mafatlal (supra), the Court was examining the question whether refund of any duty which may have been deposited wrongfully by mistake should be made or not. The Nine Judges Constitution Bench of the Supreme Court, evolved the passing on theory and found that as the duty under the Excise Act had passed on to the customers/consumers, the claim for refund was not acceptable. It also took in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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