Page 181 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] TAMILNADU EX-SERVICEMEN’S CORPN. LTD. v. COMMR. OF GST & C. EX. 99
Hutchison Max Telecom Pvt. Ltd. v. Commissioner
— 2004 (165) E.L.T. 175 (Tribunal) — Referred ......................................................................... [Para 2.2]
Ind. Swift Lands Ltd. v. Commissioner — 2017 (6) G.S.T.L. 21 (P&H) — Referred ...................... [Para 2.2]
JSW Dharmatar Port Pvt. Ltd. v. Union of India — 2019 (20) G.S.T.L. 721 (Bom.) — Referred ... [Para 3.2]
REPRESENTED BY : Shri Rabeen Jayaram, Advocate, for the Appellant.
Ms. K. Komathi, AR, for the Respondent.
[Order]. - The only dispute involved in this appeal is the denial of refund
under Section 11B of the Central Excise Act, 1944 on the ground that the claim of
the appellant was barred by limitation.
2.1 Shri Rabeen Jayaram, Ld. Advocate appearing for the assessee-
appellant, submitted inter alia that the appellant was rendering services under
the category of Security Agency, Manpower Service and Maintenance and Repair
Service; that they had received a commission of Rs. 21,01,689/- towards the
maintenance of one helicopter by the Government of Tamil Nadu; that the activi-
ty of the appellant was considered as a service under ‘Business Auxiliary Service’
and accordingly, a show cause notice dated 27-2-2009 was issued and the de-
mand was also confirmed in the Order-in-Original No. 29/2009, dated 26-8-2009;
that an appeal was filed and pending appeal adjudication, the appellant thought
it fit to pay the tax to save interest/penalty; that in appeal, Ld. First Appellate
Authority vide Order-in-Appeal No. 79/2013 (M-ST), dated 19-2-2013 set aside
the demand by holding that there was no Business Auxiliary Service, but that the
activity was only “Management, Maintenance or Repair Service”; that in the
meantime, the appellant which had deposited the disputed tax on 29-10-2011 in
order to save the interest, sought for refund of the same vide refund application
dated 27-3-2017, etc.
2.2 Ld. Advocate also submitted that the payment towards duty itself
was made under protest and therefore, the bar of limitation would not apply.
Accordingly, he relied on the following decisions :
(i) Crop Chemicals (India) Ltd. v. C.C.E., Chandigarh - 2014 (308) E.L.T.
594 (Tri. - Del.);
(ii) G.S. Radiators Ltd. v. C.C.E., Ludhiana - 2004 (10) T.M.I. 158 -
CESTAT, New Delhi = 2005 (179) E.L.T. 222 (Tribunal);
(iii) Hutchison Max Telecom Pvt. Ltd. v. C.C.E., Mumbai - 2004 (1) T.M.I.
114 - CESTAT, New Delhi = 2004 (165) E.L.T. 175 (Tri. - Del.);
(iv) Ind. Swift Lands Ltd. v. Commr. - (2017) 78 taxmann.com 209 (P & H)
= 2017 (6) G.S.T.L. 21 (P&H).
2.3 He also placed reliance on the following decisions of the Hon’ble
High Court of Judicature at Madras, viz. :
(i) Commr. of S.T., Chennai v. Wardes Pharmaceuticals Pvt. Ltd. - 2011 (22)
S.T.R. 274 (Mad.);
(ii) C.C.E., Coimbatore v. Pricol Ltd. - 2015 (39) S.T.R. 190 (Mad.);
(iii) 3E Infotech v. CESTAT, Chennai - 2018 (18) G.S.T.L. 410 (Mad.)
to contend that the appellant is entitled to the refund.
3.1 Per contra, Ms. K. Komathi, Ld. Departmental Representative ap-
pearing for the Revenue, seriously opposed the contentions of the Ld. Advocate
for the appellant and contended that the claim of the appellant was hopelessly
barred by limitation inasmuch as the cause of action having arose in 2013 for the
GST LAW TIMES  2nd July 2020  181