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2024 (3) TMI 501 - AT - Service TaxRefund of Service Tax - time limitation - date of payment as shown in the ledger account is 30.07.2015 and the submission of the party that cause of action for claiming refund is 31.01.2018, as the relevant date is the date of payment of duty in terms of explanation to Section 11B of the Central Excise Act, 1944 - Existence of provision under the GST Laws, which provides for refund of the service tax deposited by the Appellant? - HELD THAT - The aspect of limitation in the facts and circumstances of the present matters, has already been decided by this Tribunal in the various cases, whereby it was held that the time limit prescribed under Section 11B of the Central Excise Act, 1944 cannot be invoked to reject a refund claim filed under Section 142(5) of the CGST Act, 2017 - reliance can be placed in M/S. WAVE ONE PRIVATE LIMITED VERSUS COMMISSIONER, OFFICE OF THE COMMISSIONER (APPEALS-I) , CENTRAL GOODS AND SERVICE TAX AND CENTRAL EXCISE, DELHI 2023 (11) TMI 1078 - CESTAT NEW DELHI and M/S JAI MATESHWAARI STEELS PVT LTD VERSUS COMMISSIONER, CGST- DEHRADUN 2022 (3) TMI 49 - CESTAT NEW DELHI . The learned Advocate further submits that in the absence of any services, Appellant cannot be burdened with the service tax liability - The Appellant as a law abiding citizen, entered the same in their books of account and paid the applicable service tax on it after collecting it from the buyer. But when the buyer cancelled the said booking on which service tax has been paid and the Appellant returned the booking amount along with service tax collected, then where is the question of providing any service by the Appellant to that customer. The cancellation of booking coupled with the fact of refunding the booking amount along with service tax paid would mean as if no booking was made and if that is so, then there was no service at all. If there is no service then question of paying any tax on it does not arise and the Department can t keep it with them. The Appellant had collected service tax from the allottees and had duly deposited such service tax with the Revenue. Subsequently, on cancellation of the bookings/allotments, the allottees were entitled to the entire invoice amount paid by them, including the service tax amount and the Appellant was eligible to avail Cenvat credit in respect of the service tax amount so deposited by it as per Rule 6(3) of the ST Rules. The said Rule provides for availment of Cenvat credit of the excess service tax paid by an assessee against a service which was ultimately not provided for any reason - In the present cases, the Appellant could not provide services to the allottees on account of cancellation of the bookings made by them. The credit/refund of the excess service tax paid by the Appellant was a right that had accrued in favour of the Appellant and therefore, as per Section 174 of the CGST Act, 2017, such right of the Appellant ought to be upheld and protected. Further, Section 142(5) of the CGST Act, 2017 contemplates the very situation as in the present appeals and accordingly, provides for refund of taxes paid under the erstwhile Laws. The Appellant is entitled for refund and the appeal is accordingly allowed.
Issues Involved:
a) Whether the refund applications filed by the Appellant were proper and accordingly, whether the refund of the amounts claimed by the Appellant ought to have been granted? b) Whether the Ld. Commissioner (Appeals) was correct in observing that there is no provision under the GST Laws, which provides for refund of the service tax deposited by the Appellant? Summary: Issue a: Refund Applications and Entitlement The Appellant filed refund applications for Rs.12,09,213/- paid as service tax on a cancelled booking. The learned Commissioner (Appeals) dismissed the refund claim as time-barred under Section 11B of the Central Excise Act, 1944, which prescribes a one-year limitation period from the date of payment of duty. The Appellant argued that the limitation period should start from the date of refund to the allottee, citing the Supreme Court's decision in Union of India vs. ITC Ltd. and the Gujarat High Court's decision in Indo-Nippon Chemicals Co. Ltd. vs. Union of India. The Tribunal held that the refund applications were not time-barred, as the time limit under Section 11B cannot be invoked to reject a refund claim filed under Section 142(5) of the CGST Act, 2017. The Tribunal found that the service tax paid by the Appellant became merely a deposit upon cancellation of the booking, and thus, the Appellant was entitled to a refund. Issue b: Provision under GST Laws for Refund The Tribunal examined whether it had jurisdiction to entertain appeals against orders passed under Section 142 of the CGST Act, 2017. The Larger Bench of the Tribunal had previously decided that appeals against such orders lie with the Tribunal. The Tribunal noted that the Appellant's right to a refund of the excess service tax paid was protected under Section 174 of the CGST Act, 2017, and that Section 142(5) of the CGST Act, 2017, provides for refunds of taxes paid under erstwhile laws. The Tribunal concluded that the Appellant was entitled to a refund and allowed the appeal with consequential relief. (Order pronounced in open court on - 11th March, 2024)
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