Banwait Enterprises vs C.C.E. & S.T.-Chandigarh-Ii

Date of Pronouncement: 10/07/2015

Appeal No. ST/56022/2014-ST(SM)

(Arising out of OIA No. JAL-EXCUS-000-APP-112-14-15 dated 01.8.2014 passed by Commissioner (Appeals) Customs & Central Excise & Service Tax Chandigarh-II)

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of the order?

4. Whether order is to be circulated to the Department Authorities?

Banwait Enterprises Appellant

Vs.

C.C.E. & S.T.-Chandigarh-II Respondent

Appearance:

Present for the Appellant: Shri Mohinder Singh, Advocate

Present for the Respondent: Shri R.K. Grover, DR

Coram: Honble Ms. Sulekha Beevi C.S., Member (Judicial)

Final Order No. 52151/2015

Per: Sulekha Beevi C.S.

The appellant is aggrieved that his refund claim was rejected as being time barred.

2. The appellant filed a refund claim of Rs.92,014/- of service Tax paid during the period Jan/2009 to Nov./2012 in relation to the service as sub agent of Western Union/Money Gram. The claim was rejected by the adjudicating authority for the reason that the duty/tax was not deposited under protest and therefore barred by limitation as under Section 11B of the Central Excise Act. It is the case of the Revenue that appellants had not followed the procedure laid down while paying the amount under protest. The refund claim was filed after one year from the date of deposit and thus barred by limitation. In the impugned order, the Commissioner (Appeals) has observed that the appellant have deposited the service tax on the direction of the department and not on their own wish. Instead of following the procedure laid in the CBECs Excise Manual of Supplementary Instructions, 2005 to deposit service tax under protest, the appellants have mentioned in some of the GAR-7 Challans the word under protest. The Commissioner (Appeals) allowed a refund of Rs.58,233/- vide the GAR-7 Challans which mentioned the words under protest,. The refund claim of Rs.33781/- was rejected for the reason that in the GAR-7 Challans pertaining to this amount there was no remarks of under protest, and therefore was barred by limitation.

3. The learned Counsel appearing for appellants referred to the judgement laid by the Honble Supreme Court in C.C.E. Tiruchirappalli Vs. CESTAT, Chennai 2015 (38) S.T.R. 459 (Mad.) and urged that the delay is condonable as it is only technical. I do not consider that the said decision is applicable to this case, as the facts are entirely different. The Honble Court in the said case, was considering the dismissal of a petition seeking to condone delay of 37 days in filing appeal before Tribunal. Whereas, the present case the issue is the refund claim filed beyond one year. I find that the Commissioner (Appeals) has taken a lenient view and allowed refund of those amounts for which the appellant has marked protest in the GAR-7 Challans even though this is not the procedure laid for marking protest. The learned DR submitted that the procedure laid in the supplementary Instructions 2005, would help the Department to be informed about these deposits which are made under protest. That the mere marking of the words under protest, in Challans would not help providing such information to the Department. I find some substance in these submissions made by the Department. In the G.A.R. -7 Challans dated 5.3.2009, 31.3.2009, 3.7.2009 and 5.10.2012, the appellant has not endorsed the words under protest. Where as in GAR-7 Challans  dated 28.4.2010, 5.7.2010, 3.7.2010, 4.10.2010, 4.1.2011, 4,4,2011, 5,7,2011, 4.10.2011 3.1.2012, 31.3.2012 and 4.01.2013 the appellant has marked the words under protest. The refund claim is filed beyond a period one year after deposit. The amount as per these challans have been sanctioned. It is evident that the appellant has not deposited the rejected amount under protest. Thus the claim is barred by limitation as provided under Section 11B of Central Excise Act, 1944. Therefore I do not find any infirmity with the impugned order.

4. From the foregoing, the appeal is dismissed.

(Pronounced on 10/07/2015)

(Sulekha Beevi C.S.)

Member (Judicial)

K. Gupta

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