2019 (12) TMI 1065 - AT - Service Tax

Refund of penalty - retrospective exemption from service tax with interest - refund rejected on the ground that the notification exempted only service tax and interest thereon and not penalty. - whether the amount of penalty which was paid by the appellant in terms of the provisions of Finance Act is required to be refunded in view of issuance of the exemption N/N. 9/2017 dated 28.2.2017, by which the service tax and interest has been waived? HELD THAT - Since the service tax and interest itself have been exempted by the issuance of the notification under Section 11C of the Excise Act, there is no question of payment of any penalty on service tax. Even if it is presumed that the penalty is governed by the provision of 11B, that would not be appropriate and proper. At the best, it can be treated as the duty collected without the authority of law for which prescribed time limit under Section 11B is not applicable. Therefore, the refund of penalty amount paid by the appellant is justified and required to be granted to them. Renting of immovable property service - demand of service tax - HELD THAT - This issue has to be read along with the provisions of Section 11C in the circumstances which six months from date of issue of notification dated 28.2.2017. If the value portion service rendered by the appellant is excluded by the issuance of the notification the appellant falling within the threshold limit of the N/N. 33/2012 dated 20 June, 2012. Thus the duty of service tax which is otherwise not leviable in view of exemption notification will be without authority of law and the provision of Section 11B of Excise Act would not be applicable. The Assistant Commissioner is hereby directed to sanction refund within three months from the issuance of this order - Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Refund claim rejection including penalty component.
2. Refund rejection for service tax on renting of immovable property.

Analysis:

Issue 1: Refund claim rejection including penalty component
The appellant filed an appeal against the Order-in-Appeal upholding the rejection of their refund claim, which included a penalty component. The appellant, a private museum, had paid service tax, interest, and penalty for levying entry fees and renting out museum property. Subsequently, an exemption notification was issued, exempting service tax on entry fees retrospectively. The appellant filed a refund claim, which was partially rejected, excluding the penalty component. The appellant argued that since service tax and interest were exempted, penalty should also be refunded. The Tribunal agreed, stating that if service tax and interest were exempted, there should be no penalty. The Tribunal held that the penalty amount paid by the appellant should be refunded as it was collected without legal authority, not falling under the prescribed time limit of Section 11B.

Issue 2: Refund rejection for service tax on renting of immovable property
The second issue pertained to the rejection of the refund claim for service tax on renting immovable property. The appellant contended that the exemption notification dated 28.2.2017 should be considered for calculating the time limit for refund, not Section 11B. The Tribunal agreed, stating that the time limit should be reckoned under Section 11C(2) from the date of the notification. As the appellant fell within the threshold limit of exemption, the duty of service tax on renting immovable property was deemed without legal authority. Therefore, the Tribunal set aside the impugned order, allowing the appeal and directing the Assistant Commissioner to sanction the refund within three months from the date of the order, if otherwise in order.

In conclusion, the Tribunal granted the appellant's refund claim for the penalty component and service tax on renting immovable property, emphasizing that the exemption notification should be considered for calculating the time limit for refund claims.