Cst Bangalore vs Khoday Breweries Ltd

[Arising out of Order-in-Appeal No. 257-2011 dated 31/03/2011 passed by CCE(Appeals), Bangalore-II]

For approval and signature:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

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

2 Whether it should 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 Departmental authorities?

CST BANGALORE NO. 16/1, S.P. COMPLEX, LALBAGH ROAD, Bangalore Appellant(s)

Versus

KHODAY BREWERIES LTD

Respondent(s)

Appearance:

Shri N. Jagdish, Superintendent(AR) For the Appellant

None For the Respondent

Date of Hearing: 10/03/2015

Date of Decision: 10/03/2015

CORAM:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20596 / 2015

Per : B.S.V. MURTHY

Revenue is in appeal against the decision of the Commissioner(Appeals) allowing the refund claim by the party.

2. The facts, in brief, are as under:

An offence case was registered against the assessee on the ground that they had not paid service tax on GTA service and business auxiliary service(BAS). The total amount of demand came to be Rs.33,42,745/-. After investigation, show-cause notice was issued and in adjudication, demand in relation to BAS amount to Rs.32,24,685/- was dropped. After the adjudication order was passed dropping the demand for service tax on BAS, the assessee filed a refund claim claiming refund of the amount paid by them during the course of investigation. The original adjudicating authority rejected the refund claim and on an appeal filed before the Commissioner(Appeals), the learned Commissioner(Appeals) allowed the appeal.

3. The learned AR submits that the appellant had paid the service tax payable correctly and the amount was paid in 2005-06 itself and the refund claim was filed in 2010 beyond the periodsspecified for filing the refund claim and therefore the claim has been rejected correctly. The learned Commissioner(Appeals) has relied upon the decision reported in 2011-TIOL-109-HC-MAD-ST wherein it was held that if an assessee was forced to make a payment and payment made by the assessee was not voluntary, such payment can be treated as one made under protest and cannot be thrown out on the ground of limitation. The Commissioner has also relied upon the decision of this Tribunal in the case of Foods, Fats and Fertilisers Ltd. [2010(20) STR 482 (Tri. Bang.)], wherein it was held that once the service tax paid under consulting engineer services based on audit was held as not to be payable, refund claim should not have been rejected on the ground of limitation since any payment made before such conclusion has to be considered as deposit made pending completion of investigation and adjudication. In this case also, the appellant had paid the amount during the course of investigation on the advice given by the investigating officer ( it might be force) and after adjudication process, if the demand is dropped, the amount deposited has to be considered as predeposit or a deposit. Therefore in this case also, the limitation has to be accounted from the date of the adjudication order and not from the date of deposit of the amount. Therefore I do not find anything wrong in the impugned order. Accordingly the appeal is rejected.

(Order pronounced and dictated in open court)

B.S.V.MURTHY TECHNICAL MEMBER

Raja.

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