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2023 (12) TMI 125 - AT - Service TaxRefund of the service tax paid - Rejection of refund on the ground of time limitation - rejection of claim on the ground that the refund claim was filed beyond the period of six months as prescribed under Section 104(3) of Finance Act, 2017 - HELD THAT - N/N. 41/2016-S.T. dated 22-9-2016 exempts services received by way of grant of long-term lease of industrial plots from the State Government Industrial Development Corporation/undertakings. The said Notification extended the exemption to prior period by section 104 of the Finance Act 1994, by the Finance Act 2017 for the period 1.6.2007 to 21.9.2016. Section 104(3) prescribed a time limit of 6 months to file the refund application. But, the Notification is silent about the authority with whom the refund application is to be filed. Normally, the refund application is to be filed with the Service tax department. But, the Appellant in this case has not paid the service tax directly to the Service tax Department. They paid the service tax to KMDA, who paid the tax in the Government Account. It is observed that the Appellant made sincere effort to file the refund claim well within the time limit of six months prescribed in Section 104(3). The delay in filing the refund with the service Tax department was only due to inaction by the service tax department and improper advice by KMDA. They have filed the refund claim well in time with KMDA with whom they paid the service tax. As the Notification 41/2016 was not clear with whom the refund application was to be filed, the delay has happened. Thus, the delay in filing the refund application with the service tax department was not due to the fault of the Appellant. Hon'ble Madras High Court in the case of M/S. GRAND TECHNOLOGIES VERSUS THE ASSISTANT COMMISSIONER OF GST CE, PUDUCHERRY 2022 (9) TMI 9 - MADRAS HIGH COURT , allowed the refund claim on similar facts and circumstances by holding that the period of limitation prescribed in Section 104(3) is not applicable - the decision of Hon'ble Madras High Court is squarely applicable in this case. The impugned order rejecting the refund claim on time bar ground set aside - the Appellant is eligible for sanction of the refund by ignoring the time bar aspect as held by the Hon'ble Madras High Court in the case of Grand Technologies - appeal allowed.
Issues Involved:
1. Refund of service tax paid by the appellant. 2. Time-bar for filing the refund claim. 3. Interpretation of Section 104(3) of the Finance Act, 2017. 4. Applicability of judicial precedents. Summary: 1. Refund of Service Tax Paid by the Appellant: The appellant, M/s. Asian Leather Pvt. Ltd., sought a refund of service tax paid to Kolkata Metropolitan Development Authority (KMDA) on the long-term lease of industrial plots. The refund claim arose due to Exemption Notification No. 41/2016-Service Tax dated 22.9.2016, which was extended to the prior period by Section 104 of the Finance Act, 1994, as amended by the Finance Act, 2017, covering the period from 1.6.2007 to 21.9.2016. 2. Time-bar for Filing the Refund Claim: The appellant's refund application was rejected by the adjudicating authority and upheld by the Commissioner (Appeals) on the grounds that it was filed beyond the six-month period prescribed under Section 104(3) of the Finance Act, 2017. The appellant argued that the delay was due to improper advice and inaction by KMDA and the Service Tax Department. 3. Interpretation of Section 104(3) of the Finance Act, 2017: The appellant contended that the delay was not their fault as they made sincere efforts to file the refund claim within the prescribed time limit but were misled by KMDA and the Service Tax Department. The appellant cited the decision of the Hon'ble Madras High Court in the case of Grand Technologies, which held that the period of limitation prescribed in Section 104(3) is not applicable under similar circumstances. 4. Applicability of Judicial Precedents: The Tribunal observed that the appellant's delay in filing the refund claim was not due to their fault but due to the ambiguity in Notification No. 41/2016 regarding the authority with whom the refund application was to be filed. The Tribunal found the decision of the Hon'ble Madras High Court in Grand Technologies to be applicable, which allowed the refund claim despite the time-bar issue. Conversely, the decision of the Hon'ble Madhya Pradesh High Court in MDP Infra (India) Pvt. Ltd., cited by the respondent, was distinguished as it involved a fault on the part of the appellant in that case. Conclusion: The Tribunal set aside the impugned order rejecting the refund claim on the grounds of time-bar and allowed the appeal filed by the appellant, granting consequential relief as per law. The Tribunal held that the appellant is eligible for the refund by ignoring the time-bar aspect, following the precedent set by the Hon'ble Madras High Court in Grand Technologies.
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