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2019 (7) TMI 1416 - AT - Service TaxRefund of service tax - development charges, as exempted, with retrospective effect under section 104 (1) of Finance Act, 1994 - time limitation - refund claim was filed only on 16.11.2017, which is beyond the due date - HELD THAT - It was essential for the appellant to get information from SIPCOT as to the eligibility of the refund. They also had to obtain the necessary documents in the nature of service tax paid challan of SIPCOT as well as the certificate issued by SIPCOT stating that they have not claimed any refund. It has to be noted that Section 104 does not identify as to who can make the refund application. If it had mentioned that service provider could make the application and pass over the amount to the service recipient, it would have been easy to apply within the limitation prescribed. In cases where SIPCOT has not collected and has borne the incidence of tax, SIPCOT can make the refund application. The person who can make the refund claim having not been specified in the section, the plea put forward by the appellants that they were unable to make the claim before 30.09.2017 is not without substance. The rejection of refund claim on the ground of time bar is unjustified - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Whether the refund claim filed by the appellant is time-barred. 2. Whether the delay caused by SIPCOT in providing necessary documents can be excluded for computing the period of limitation. Issue-wise Detailed Analysis: 1. Whether the refund claim filed by the appellant is time-barred: The appellants filed a refund claim of ?10,76,803/- on 16.11.2017 for service tax paid on development charges, which was exempted retrospectively under section 104(1) of the Finance Act, 1994. According to section 104(1) of the Finance Act, 2017, the refund claim had to be filed within six months from the date the amendment received the President's assent, which was on 31.03.2017. Therefore, the deadline for filing the refund was 30.09.2017. The department issued a show-cause notice proposing to reject the refund claim as time-barred, and the original authority rejected the claim, which was upheld by the Commissioner (Appeals). The appellant argued that the delay occurred because SIPCOT, the service provider, informed them only on 27.10.2017 that they needed to apply for a refund directly. The appellant contended that section 104 does not specify who should file the refund claim, making it impracticable to file within the prescribed period without cooperation from SIPCOT. They relied on the decision in M/s. JSW Dharmatar Port Pvt. Ltd. vs. Union of India, where the court held that "no person can be expected to perform a task beyond his control," and the time taken to obtain necessary certificates was excluded from the limitation period. The respondent argued that section 104 specifically states that the refund must be filed within six months from the date of the President's assent, and the Tribunal has no power to condone the delay beyond this period, as supported by the decision in M/s. Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur. 2. Whether the delay caused by SIPCOT in providing necessary documents can be excluded for computing the period of limitation: The Tribunal noted that section 104(1) exempts service tax on one-time upfront amounts for long-term leases of industrial plots and mandates a refund of all collected service tax. Sub-section (3) specifies that the refund application must be made within six months from the President's assent. The appellant needed documents from SIPCOT to file the refund claim, and the delay in obtaining these documents from SIPCOT was beyond the appellant's control. The Tribunal referred to the decision in M/s. JSW Dharmatar Port Pvt. Ltd., where the court excluded the time taken to obtain certificates from the Ministry for computing the limitation period, emphasizing that "no person can be expected to perform a task beyond his control." The Tribunal found the situation analogous, as the appellant needed information and documents from SIPCOT to file the refund claim. The Tribunal concluded that the delay caused by SIPCOT in providing the necessary documents should be excluded for computing the limitation period. Therefore, the rejection of the refund claim on the ground of being time-barred was unjustified. The impugned order was set aside, and the appeal was allowed with consequential reliefs. Conclusion: The Tribunal allowed the appeal, setting aside the impugned order that rejected the refund claim as time-barred. The Tribunal held that the delay caused by SIPCOT in providing necessary documents should be excluded for computing the limitation period, following the principle that no person can be expected to perform a task beyond their control.
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