Page 182 - GSTL_2nd July 2020 _Vol 38_Part 1

100 GST LAW TIMES [ Vol. 38
deposit made in 2011, the refund has been claimed in 2017, for which the appel-
lant has not at all offered any explanation.
3.2 She further contended that the taxing statute has to be strictly con-
strued, and relied on the ratio of the Hon’ble Apex Court in the case of M/s. ALD
Automotive Pvt. Ltd. v. Commercial Tax Officer reported in 2018 (364) E.L.T. 3 (S.C.).
Ld. Departmental Representative also relied on the following decisions :
(i) JSW Dharmatar Port Pvt. Ltd. v. Union of India - 2019 (20) G.S.T.L. 721
(Bom.);
(ii) Essar Bulk Terminal Salaya Ltd. v. Union of India - 2019 (25) G.S.T.L.
521 (Guj.)
in her support. She thus pleaded that the impugned order does not call for any
interference.
4. I have heard the rival contentions, gone through the documents
placed on record and also various decisions relied on by both the sides.
5. On going through the Appeal Memorandum, I find that the appel-
lant has placed on record the Minutes of Board Meeting of the appellant-
corporation held on 28-9-2011 wherein the Board had resolved to pay the Service
Tax amount under protest. There is nothing on record nor in the pleadings of the
appellant that the same was furnished before the lower authorities. Also, the said
document has not at all been discussed anywhere in the orders of both the lower
authorities. This assumes importance especially in the light of the fact that the
payment appears to have been made not during investigation, but post Order-in-
Original but pending adjudication of the first appeal.
6. The decision of the Hon’ble Supreme Court in the case of M/s. ALD
Automotive Pvt. Ltd. (supra) relied on by the Revenue deals with the mandatory
requirement of Section 19(11) of the Tamil Nadu Value Added Tax Act, 2006,
which provides for claiming input tax credit, which is not like a refund under
Section 11B impugned herein.
7.1 In the decision in the case of M/s. Wardes Pharmaceuticals Pvt. Ltd.
(supra), the Hon’ble jurisdictional High Court has answered as to what consti-
tuted payment made under protest, in the following manner :
“10. The above facts are found in the findings recorded by the Commis-
sioner in its order dated 1-6-2007. A conspectus consideration of the above
facts only go to show that the payment made by the first respond-
ent/assessee was not voluntary and was forced to make the said payment.
In such circumstances, the said payment can only be construed as one made
under protest. When once the said conclusion based on the above facts are
inevitable, then the second proviso to sub-section (1) of Section 11B of the
Central Excise Act, automatically comes into play. Therefore, the conclusion
of the Tribunal in having held that the first respondent made the payment
under protest was well justified and the order of the Tribunal in holding
that the application made by the first respondent/assessee for refund of the
payment made in its application dated 18-8-2006 cannot be thrown out on
the ground of limitation. The order of the Assistant Commissioner dated
8-11-2006 in having allowed the refund of Rs. 2,15,463/- under Section 11B
of the Act was, therefore, perfectly in order and the order of the Tribunal in
setting aside the order of the Commissioner dated 1-6-2007 cannot be called
in question. Inasmuch as the above conclusions of the Tribunal were made
based on relevant considerations of the claim of the respondent/assessee
GST LAW TIMES  2nd July 2020  182