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TMI Blog2016 (7) TMI 1151X X X X Extracts X X X X X X X X Extracts X X X X ..... then take precedence over the special provision in S 11 C ibid. In such a case, by implication the refund claimant will legally become entitled to file the claim within a time limit of one year from the date of judgment, decree, order or direction of appellate authority, Tribunal or Court in view of clause (ec) of explanation B of S 11 B (5) ibid The limitation can therefore start clicking only from the date of final judgment /decree/decision of Court/Tribunal/Appellate Authority. In this case therefore the limitation period will only start, at the earliest, after 23.05.2016 i.e. date of Final Order No. A/30489/2016 stated above. Refund is not hit by infirmities of time bar and cannot also be rejected on the ground that the Notification No. 45/2010-ST is not applicable to the appellant - Decided in favor of assessee. - ST/2240/2012 - Final Order No. A/30567/2016 - Dated:- 29-6-2016 - Ms. Sulekha Beevi, C.S., Member (Judicial) and Sh. Madhu Mohan Damodhar, Member (Technical) Shri R. Raghavendra, Authorised Representative for the Appellant. Shri Prabhu Das Puli, Joint Commissioner (AR) for the Respondent ORDER The facts of the case are that the appellant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AR, reiterated the findings in the impugned order and submitted that the refund is hit by limitation. He contended that Section 11C clearly lays down that the claim has to be filed within six months of the date of notification. 5. We have heard both sides and gone through the records of the case. 6. We find that the contentions of the appellant are not without merits. In the first place itself, we find from the records that the issue of taxability of services provided by service providers such as the appellant in categories like Erection Commissioning or Installation Services was in dispute and the department had contended that such services will not fall under the beneficial ambit of notification nos.11/2010-ST dated 27.02.2010 and 32/2010-ST dated 22.06.2010. The relevant portions of these notifications are reproduced below: In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the Finance Act), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service provided to any person, by any other person f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctricity. Now, therefore, in exercise of the powers conferred by section 11C of the Central Excise Act, 1944 (1 of 1944), read with section 83 of the said Finance Act, the Central Government hereby directs that the service tax payable on said taxable services relating to transmission and distribution of electricity provided by the service provider to the service receiver, which was not being levied in accordance with the said practice, shall not be required to be paid in respect of the said taxable services relating to transmission and distribution of electricity during the aforesaid period . 9. It is thus seen that the subsequent notification clearly stated that no service tax was required to be paid on all taxable services provided by service provider to service receiver during the period up to 26.02.2010 for all services relating to transmission of electricity, and during the period up to 21.06.2010 for all taxable services relating to distribution of electricity. 10. We find that the issue of eligibility of No. 45/2010-ST in identical situation is no longer res integra and has been decided in favour of service providers such as the appellant, in a number of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson to another person during the relevant period covered by the proceedings. It is not limited only to taxable service of transmission by the transmission company as observed by the learned original adjudicating authority. Prima facie, I find that appellant is eligible for the benefit of Notification and therefore the appeal could have been heard without insisting on pre-deposit. Accordingly, the impugned order is set aside and the matter is remanded to the Commissioner (A) with a request to hear the appeal without insisting on any pre-deposit. 5. Similar view has been accorded in the other cited judgments also. Applying the dictum laid in the above judgments we find that the demand raised under ECIS is unsustainable and requires to be set aside which we hereby do. We do not interfere with the demand in regard to renting of Immovable Property. The appeal partly allowed with consequential reliefs, if any. 11 . In the circumstances, we 'therefore find that the main issue per se was in agitation/subjudice in respect of this appellant at least till the date of Tribunal's afore cited Final Order viz; 23.05.2016. In the normal course, pursuant to issue of a notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral provision of Section 11 (B). The general provision of S 11 B 5 (ec) will then take precedence over the special provision in S 11 C ibid. In such a case, by implication the refund claimant will legally become entitled to file the claim within a time limit of one year from the date of judgment, decree, order or direction of appellate authority, Tribunal or Court in view of clause (ec) of explanation B of S 11 B (5) ibid 13. In the circumstances, we are of the considered opinion that the limitation can therefore start clicking only from the date of final judgment /decree/decision of Court/Tribunal/Appellate Authority. In this case therefore the limitation period will only start, at the earliest, after 23.05.2016 i.e. date of Final Order No. A/30489/2016 stated above. 14. For the reasons discussed above, we find that the refund is not hit by infirmities of time bar and cannot also be rejected on the ground that the Notification No. 45/2010-ST is not applicable to the appellant . We therefore essentially hold that the appellant is eligible for refund. The rejection of refund being unsustainable, the same is set aside and the appeal is allowed with consequential reliefs, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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