2017 (4) TMI 755 - AT - Service Tax

Stay of order - Refund claim - delay in filing appeal - Section 103 of FA, 1994 - Held that - it is apparent that the enabling provision for claiming the refund of service Tax does not prescribe anything to meet the eventuality of delay in filing the refund. In other words, it does not confer jurisdiction on the sanctioning authority to condone the delay - Revenue s stay application allowed - decided in favor of Revenue.

Summary

Issues:
1. Stay application filed by Revenue seeking Stay of the Order in Appeal
2. Whether delay in filing the refund claim can be condoned under Sec. 103 of the Finance Act, 1994?
3. Interpretation of Sec. 103 of Finance Act, 1994 regarding refund of service tax

Analysis:
1. The Revenue filed a Stay application seeking Stay of the Order in Appeal No OIA-RAJ-EXCUS-000-APP-134-16-17 dated 12/01/2017. The issue arose due to the rejection of a refund claim of service tax amounting to &8377; 12,67,61,271/- by the adjudicating authority on grounds of delay in filing the claim. The Ld. Commissioner(Appeals) allowed the appeal by condoning the delay, which the Revenue contended was beyond the Commissioner's jurisdiction and non est in law.

2. The Ld Advocate for the appellant argued that Sec. 103 of the Finance Act, 1994, inserted through an amending Finance Act in 2016, is directory in nature and not mandatory like Sec. 11B of CEA, 1944. It was contended that the power to relax procedural conditions, including condonation of delay in filing the refund application, is implied under this provision.

3. The crucial provision in question, Sec. 103 of the Finance Act, 1994, pertains to the refund of service tax in specific cases related to the construction of airports or ports. The provision does not explicitly address the issue of condonation of delay in filing the refund application. The Tribunal observed that the provision does not confer jurisdiction on the sanctioning authority to condone the delay, as it does not prescribe any mechanism to address delays. Consequently, the Tribunal found merit in the Revenue's submission, allowing the Stay application and fixing the appeal for final hearing on 05th April, 2017, considering the substantial question of law involved.

This detailed analysis of the judgment highlights the issues surrounding the Stay application, the interpretation of Sec. 103 of the Finance Act, 1994, and the implications of delay in filing the refund claim.