2021 (2) TMI 367 - AT - Service Tax

Refund of Service Tax - time limitation - whether the appellant had submitted the application for refund of service tax within the stipulated time since the application filed for refund has been rejected for the sole reason that it was not submitted within the time prescribed? - Section 83 of the Finance Act - HELD THAT - Though section 11B of the Excise Act has been mentioned in section 83 of the Finance Act but what needs to be noticed is that the provisions of the Excise Act would apply so far as may be in relation to service tax as they would apply in relation to a duty of excise. Thus if there is a specific provision in the Finance Act itself for claiming refund of service tax the provisions of section 11B of the Excise Act dealing with refund would not apply. There cannot possibly be two time limits prescribed for making an application for refund of service tax. When the time limit prescribed in sub-section (3) of section 102 of the Finance Act or sub-section (3) of section 104 of the Finance Act is applicable the time limit prescribed in section 11B of the Excise Act would not be applicable. Stipulation in section 83 of the Finance Act that the certain sections of the Excise Act shall apply so far as may be in relation to service tax as they apply in relation to duties of excise have not been examined. Though section 102 or section 104 of the Finance Act do not prescribe any format but a procedure for filing an application for refund of service tax has been prescribed in the Trade Notice and the Circular. It is also not the case of the appellant that the appellant was not aware of the procedure since it is the appellant that had placed the Trade Notice and the Circular - Such being the position it is not possible to hold that the limitation for making an application for refund of service tax would be that as provided in section 11B of the Excise Act. The Application for refund of service tax has to be made within the period stipulated in sub-section (3) of section 102 of the Finance Act. Whether the appellant had submitted the application for refund of service tax online on October 13 2016? - HELD THAT - In order to transact the business of ACES a user has to first register through a process called Registration with ACES . Detailed steps for taking registration have also been provided. The system generates a registration number and it is only thereafter that an assessee can transact business through ACES. The appellant has enclosed a copy of the application which the appellant contends was submitted online. Registration Number has however not been indicated by the appellant. The appellant therefore could not have transacted any business through ACES. This procedure for registration has also been prescribed in the Circular dated March 23 2010 which has also been relied upon by the appellant - It also transpires that from a perusal of the Trade Notice that an assessee can electronically file a statutory return by either filing it online or downloading off-line return utilities which can be filled-in off-line and uploaded to the system through internet. The returns uploaded through this procedure are validated by the ACES before acceptance into the system and an assessee can track the status of the return by selecting the appropriate option in the sub-menu which would show the status as uploaded which means under process by ACES or filed which means successfully uploaded. The appellant has not stated that the online application was successfully uploaded. It also provides that in case of any difficulty in accessing ACES application an assessee can seek the help of the Service Desk. It is therefore clear that though an attempt was made by the appellant to submit the application online but the process that was required to be undertaken for making an application online was not complied to with as even the regulation was not done. The application cannot be treated to have been filed on time. If there was any difficulty in submission the application the appellant could have sought the help of the help desk but the appellant has not stated that he made an attempt to seek help - appellant therefore cannot contend that the online application was actually made on October 13 2016 as there is nothing on the record to substantiate that such an application was actually filed. The appellant filed a hard copy of the application only on December 20 2016 in the office of the Assistant Commissioner and the records do indicate that correspondence did take place between the Department and the appellant in connection with this application. This Application was filed beyond the period prescribed in sub-section (3) of section 102 of the Finance Act. In the absence of any provision for condoning the delay in filing the application the Commissioner (Appeals) committed no illegality in upholding the order passed by the Assistant Commissioner rejecting the application filed by the appellant for refund of service tax on the ground that it was not filed within the time stipulated - Appeal dismissed.

Summary

Issues Involved:
1. Whether the refund claim filed by the appellant was barred by time.
2. Whether the date of online refund request can be considered within the prescribed time limit.
3. Applicability of Section 11B of the Central Excise Act, 1944 to the refund claim under Section 102 of the Finance Act, 1994.

Detailed Analysis:

1. Whether the refund claim filed by the appellant was barred by time:

The appellant sought to quash the order dated January 18, 2019, by the Commissioner (Appeals) which upheld the Assistant Commissioner's order rejecting the refund claim of ?64,68,025/- on grounds of being time-barred. The Finance Act, 2016, introduced Section 102, which exempted service tax for certain services provided to government authorities from April 01, 2015, to February 29, 2016, and allowed for refunds of taxes paid during this period. Sub-section (3) stated that refund applications must be filed within six months from the President's assent to the Finance Bill, 2016, which was received on May 14, 2016. The appellant filed the hard copy of the refund claim on December 20, 2016, beyond the prescribed deadline of November 30, 2016. The Assistant Commissioner and Commissioner (Appeals) both concluded that the application was time-barred.

2. Whether the date of online refund request can be considered within the prescribed time limit:

The appellant claimed to have submitted an online refund application on October 13, 2016, within the deadline. However, the Assistant Commissioner found no record of this online submission on the ACES portal. The Commissioner (Appeals) noted that the appellant's online printout indicated "offline" submission of supporting documents, which were only submitted on December 20, 2016. The appellant failed to provide a cogent reason for the delay in submitting the hard copy and accompanying documents. The tribunal concluded that the appellant did not comply with the procedural requirements for online submission, and thus, the refund application could not be considered timely filed.

3. Applicability of Section 11B of the Central Excise Act, 1944 to the refund claim under Section 102 of the Finance Act, 1994:

The appellant argued that Section 11B of the Central Excise Act, which allows a one-year period for filing refund claims, should apply instead of the six-month period specified in Section 102(3) of the Finance Act. The tribunal rejected this argument, stating that Section 102 of the Finance Act is a special provision with its specific time limit, which must be strictly adhered to. The tribunal emphasized that the special provision under Section 102(3) overrides the general refund provisions under Section 11B of the Excise Act. The tribunal also referenced a contrary decision in Roop Automotive but declined to follow it, maintaining that the specific time limit in Section 102(3) prevails.

Conclusion:

The tribunal upheld the orders of the Assistant Commissioner and Commissioner (Appeals), concluding that the refund claim was time-barred and that the appellant did not substantiate the online submission of the refund application within the prescribed time. The appeal was dismissed.