2016 (7) TMI 1151 - AT - Service Tax

Refund - period of limitation - retrospective exemption on all taxable services relating to Transmission and Distribution of Electricity provided by a service provider to a service receiver during the period 26.02.2010 to 21.06.2010 - refund claim is filed on 11.07.2011 which is after lapse of six months from issue of notification and hence is hit by time bar. Held that - We find that both the apparently conflicting provisions in section 11(B) vis-a-vis 11 (C) ibid, with regard to time limit prescribed to file refund claim are in fact harmonious with each other. Each has its own place, purpose and intention in the statute. The time limit of six months provided in Section 11 (C) will normally be applicable in respect of refund claims emanating out of notifications issued under that section. However, if the issue involved in such 11 (C) notification is also subjudice in any Court etc., the said provision of Section 11 (C) will stand eclipsed by the general provision of Section 11 (B). The general provision of S 11 B 5 (ec) will then take precedence over the special provision in S 11 C ibid. In such a case, by implication the refund claimant will legally become entitled to file the claim within a time limit of one year from the date of judgment, decree, order or direction of appellate authority, Tribunal or Court in view of clause (ec) of explanation B of S 11 B (5) ibid The limitation can therefore start clicking only from the date of final judgment /decree/decision of Court/Tribunal/Appellate Authority. In this case therefore the limitation period will only start, at the earliest, after 23.05.2016 i.e. date of Final Order No. A/30489/2016 stated above. Refund is not hit by infirmities of time bar and cannot also be rejected on the ground that the Notification No. 45/2010-ST is not applicable to the appellant - Decided in favor of assessee.

Summary

Issues Involved:
1. Time-barred refund claim.
2. Applicability of Notification No. 45/2010-ST to the appellant.

Detailed Analysis:

1. Time-barred Refund Claim:
The appellant filed a refund claim for ?61,81,771/- on 11.07.2011 for service tax paid under ECIS for the periods 2009-10 and 2010-11. The refund was claimed under Notification No. 45/2010-ST dated 20.07.2010. The refund sanctioning authority rejected the claim on the grounds that it was filed after six months from the date of the notification, making it time-barred as per Section 11C of The Central Excise Act, 1944. The appellant contended that the limitation period should start from the date of a favorable judgment as per Section 11B (5)(B)(ec). The Tribunal found merit in the appellant's contention, citing that the issue of taxability of services provided by the appellant was in dispute and subjudice until the Tribunal's final order on 23.05.2016. Therefore, the limitation period should start from the date of this final judgment, making the refund claim timely.

2. Applicability of Notification No. 45/2010-ST:
The refund was also denied on the grounds that Notification No. 45/2010-ST was not applicable to the appellant, who was engaged in ECIS and not in the transmission/distribution of electricity. The appellant argued that this issue had been settled in several decisions favoring service providers like them. The Tribunal reviewed relevant case laws and previous decisions, including the appellant's own appeal, where it was established that the services provided by the appellant were eligible for the benefits under Notification No. 45/2010-ST. The Tribunal concluded that the appellant was indeed eligible for the refund under this notification.

Conclusion:
The Tribunal held that the refund claim was not time-barred and that Notification No. 45/2010-ST was applicable to the appellant. Consequently, the rejection of the refund claim was set aside, and the appeal was allowed with consequential reliefs. The judgment emphasized the harmonious construction of Sections 11B and 11C of The Central Excise Act, 1944, to ensure that the appellant's claim was considered within the appropriate time frame following the final judgment.