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2019 (12) TMI 945 - AT - Service TaxRefund of service tax - tax was erroneously collected - refund was rejected on the ground of time limitation - Retrospective exemption vide Finance Act, 2017 - Revenue was of the view that any claim for refund was to be made within a period of six months from the date of assent of the Hon ble President of India (which was on 01.04.2017) and therefore, the appellant s application for refund dated 11.12.2017, which was beyond six months, was barred by limitation as prescribed under Section 104 (3) - HELD THAT - In the case of Roop Automotives Ltd. 2019 (7) TMI 907 - CESTAT CHENNAI it was held that, the time-limit prescribed under Section 104 (3) is only directory, but however, the time as well as the procedure prescribed under Section 11B applies in full. The limitation of one year as in Section 11B of the Central Excise Act, 1944 would have to be reckoned from 01.04.2017 which is the date on which the assent of the Hon ble President was received. The matter is remanded to the file of the Adjudicating Authority, who shall verify and pass appropriate orders - appeal allowed by way of remand.
Issues Involved:
1. Claim for refund of Service Tax on one-time development charge beyond the prescribed limitation period. 2. Jurisdiction of the Tribunal to grant refund by extending the limitation period. 3. Interpretation of Section 104 of the Finance Act, 2017 and its connection with Section 11B of the Central Excise Act, 1944. Analysis: 1. The appellant filed a claim for refund of Service Tax on a development charge beyond the six-month limitation period prescribed under Section 104 (3) of the Finance Act, 2017. The Revenue contended that the claim was time-barred. The Order-in-Original rejected the refund claim, upheld by the Commissioner of G.S.T. and Central Excise (Appeals-II). The appellant challenged this decision in the appeal. 2. During the hearing, the appellant's counsel cited previous Tribunal decisions to support the claim, emphasizing that the issue was no longer res integra. The Departmental Representative argued that the Tribunal lacked jurisdiction to extend the limitation period, citing specific court decisions to support this stance. 3. The Member (Judicial) analyzed the precedents cited by both parties. Referring to the decision in M/s. Roop Automotives Ltd., it was concluded that Section 104 is not a self-contained provision but is dependent on Section 11B. The judgment emphasized that the procedural requirements should serve justice and not defeat it. The term "shall" in Section 104 (3) was considered directory, not mandatory, to ensure the benefit of the provision is not denied due to technicalities. 4. It was further clarified that the limitation period under Section 104 (3) is directory, while the procedure under Section 11B must be followed. The Member directed the Adjudicating Authority to ascertain if the refund application met the time limit under Section 11B. If within the limit, the refund should be granted with consequential benefits. 5. The judgment highlighted that the one-year limitation period under Section 11B should be calculated from the date of the President's assent on 01.04.2017. The matter was remanded to the Adjudicating Authority for verification and appropriate orders in line with the directions provided in the previous Tribunal decision. In conclusion, the Tribunal partly allowed the appeal, emphasizing the importance of procedural justice and directing the Adjudicating Authority to determine the eligibility for refund based on the prescribed time limit under Section 11B.
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