BALAJI EDIBLES PVT. LTD. Vs. CCE & ST-BHOPAL
LAWS(CE)-2015-1-38
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on January 14,2015

Balaji Edibles Pvt. Ltd. Appellant
VERSUS
Cce And St -Bhopal Respondents




JUDGEMENT

Manmohan Singh, Member (T) - (1.)THE above appeal and stay application has been filed by M/s. Balaji Edibles (P) Ltd. against Order -in -Revision dt. 08 -07 -2011 passed by Commissioner, Central Excise, Bhopal.
(2.)AS the issue involved in the present appeal is covered by decision of the Tribunal, with the consent of both sides, I propose to dispose of the appeal itself after waiving the condition of pre -deposit.
The brief fact of the case are that appellants are engaged in manufacture of Biscuits falling under chapter 1905 of Central Excise Tariff Act, 1985. They have been availing services of goods transport agency. Service tax on goods transport agency services being payable under reverse charge, appellants obtained Service Tax Registration and paid service tax thereon. During the period May 2007 to March 2008, appellants paid service tax of Rs. 2746973/ - against actual liability of Rs. 1363228/ - resulting in excess payment of Rs. 1383745/ -. Therefore appellants filed a refund claim on 02 -01 -2009 claiming refund of excess service tax paid Rs. 952164/ - Vide Order -in -Original No. 01/ST/Refund/2009 -10 dt. 17 -07 -2009, the learned Assistant Commissioner granted refund of Rs. 952164/ -which had been paid during last one year and held that the excess amount of Rs. 431581/ - could be adjusted in subsequent payment.

(3.)THE jurisdictional Commissioner vide Order -in -Revision dt. 08 -07 -2011 passed under section 84 of Finance Act, 1994, ordered for recovery of Rs. 1559695/ - (Rs. 995638/ - + Rs. 564057/ -) under the provisions of section 73 read with section 84 of Finance Act, 1994. He observed that the Assistant Commissioner has granted refund of Rs. 995638/ - excess paid during May 2007 to November 2007 by way of adjustment against the service tax liability for the subsequent period; Section 11B of Central Excise Act 1944 provides that refund claim can be filed with in one year from the date of payment of duty; therefore the refund granted by way of adjustment was barred by limitation. For the period December 2007 to March 2008, appellant had paid Rs. 952164/ - against actual liability of Rs. 564057/ -. Therefore appellant was eligible for refund of Rs. 388107/ - but the Assistant Commissioner granted refund of Rs. 952167/ -. Hence excess amount of Rs. 564057/ - refunded to the appellants was held to be recoverable.
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