2019 (3) TMI 1508 - AT - Service Tax

Refund claim - rejection on the ground of time bar - Section 11B of CEA - Held that - The relevant date in terms of Section 11B of the Act is the date on which litigation comes to an end i.e. 05.01.2017, thereafter, within almost one month, the appellant filed refund claim. In that circumstances, the refund claim cannot be held as barred by limitation. Accordingly, on the said ground, the appellant is entitled to claim refund. The Ld. Commissioner (Appeals) has held that the appellant has failed to show that whether the order dated 05.01.2017 has attained finality or not? It is not the duty of the appellant to provide all details whether the said order has attainted finality or not, it is the duty of Revenue to show that the said order has not attained finality and has misunderstood by the Ld. Commissioner (Appeals) that the appellant is required to show that the said order has attained finality - Therefore, the Revenue has failed to discharge their onus to show that the said order dated 05.01.2017 has attained finality or not. In that circumstances, the refund claim cannot be rejected. Refund allowed - appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claim dismissal as time-barred.

Analysis:
The appellant, a service provider for the Construction of Housing Board, Haryana, believed the services provided were not taxable and did not pay service tax initially. However, after receiving letters from the department, the appellant paid service tax on 09.02.2016. Subsequently, a show cause notice was issued for the period 2014-2015. The appellant filed a refund claim on 08.11.2016, which was rejected on the grounds of not filing before the proper officer. Another refund claim filed on 07.02.2017 was rejected as time-barred and questioned the provision of other taxable services. The Ld. Commissioner (Appeals) found the appellant only provided services to the Housing Board, Haryana but dismissed the refund claim due to uncertainty about the finality of a previous order. The appellant contended that the refund claim was within the time limit under Section 11B of the Act and should not be rejected solely on the basis of time limitation.

The Revenue argued that the refund claim was time-barred as per Section 102 of the Finance Act, 1994, requiring filing within 6 months from the amendment date. The Tribunal noted that the issue of service tax liability was settled on 05.01.2017, and the refund claim filed almost a month later was not time-barred under Section 11B of the Act. The Tribunal emphasized that it was the Revenue's responsibility to demonstrate if the previous order had not attained finality; thus, the refund claim could not be rejected solely on the grounds of uncertainty regarding the finality of the order. Consequently, the impugned order was set aside, and the appeal was allowed, granting the appellant the refund claim.

This judgment clarifies the significance of the finality of orders in determining the time limitation for refund claims under the relevant legal provisions. It underscores the burden of proof on the Revenue to establish the lack of finality of an order and highlights the appellant's entitlement to a refund claim within the prescribed time limit under the law.