Page 102 - GSTL_11th June 2020_Vol 37_Part 2

188 GST LAW TIMES [ Vol. 37
by notification in the Official Gazette in full discharge of his liability
for the duty leviable on his production of certain goods, if after the
manufacturer has made the payment on the basis of such rate for
any period but before the expiry of that period such rate is reduced,
the date of such reduction;
(e) in the case of a person, other than the manufacturer, the date of pur-
chase of the goods by such person;
(ea) in the case of goods which are exempt from payment of duty by a
special order issued under sub-section (2) of Section 5A, the date of
issue of such order;
(eb) in case where duty of excise is paid provisionally under this Act or
the rules made thereunder, the date of adjustment of duty after the
final assessment thereof;
(ec) in case where the duty becomes refundable as a consequence of
judgment, decree, order or direction of appellate authority, Appel-
late Tribunal or any court, the date of such judgment, decree, order
or direction;
(f) in any other case, the date of payment of duty.”
7. He would submit that in the above cases deposit of amounts have
not been specifically covered and hence they fall in the case of “in any other case,
the date of payment of duty”. In this case, the duty or Service Tax has not yet
been paid as the deposit of an amount towards Service Tax or excise is not reck-
oned as payment of duty. It is only when such deposit is appropriated towards
payment of duty, it will amount to payment of duty and that date is the relevant
date. It is in the nature of deposit made which is lying unutilized in the account
current. Therefore, the relevant date for reckoning the one year time period has
not yet begun in their case. Therefore, their application for refund was fully with-
in the period of one year. Therefore, they are entitled to refund of the amount so
deposited.
8. Per contra, Learned Departmental Representative submits that the
first appellate authority has correctly rejected their appeal before him against the
order of original authority as new grounds were raised before him, which are not
part of the decision of the original authority at all. Therefore, the appeal may be
rejected.
9. I have considered the arguments on both sides and perused the rec-
ords. It is not in dispute that the application of refund was rejected to the extent
of Rs. 7,07,894/- on the ground of time bar. It is also not in dispute that this per-
tains to an amount deposited vide challan dated 17-5-2016 and the application
for refund was filed beyond one year from the date of this challan. It is also evi-
dent that the appellant had raised some other grounds before the first appellate
authority which are not part of the decision in the order-in-original rejecting their
appeal. On this ground, the first appellate authority has rejected the appeal.
10. The questions to be considered in this case are as follows :
(1) Whether the deposits made through challans which have not been
utilized towards payment of duty can be claimed as refund under
Section 11B;
(2) Whether in such cases, the provisions of Section 11B apply in toto or
otherwise; and

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