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TMI Blog2017 (3) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... ower of condonation of delay are vested with adjudicating authority - it cannot be said that adjudicating authority has committed any error in rejecting the refund claim - petition dismissed - decided against petitioner. - SPECIAL CIVIL APPLICATION NO. 844 of 2017 - - - Dated:- 13-2-2017 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. FOR THE PETITIONER : MR. JAY KANSARA, LD. ADV FOR M/S WADIAGHANDY AND CO, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. By way of present petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order to quash and set aside the impugned Order in Original dated 27.10.2016, by which, the learned Assistant Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a that they are liable to pay service tax. It is submitted that however subsequently the petitioner claimed all the service tax upon the service recipient from the Kandla Port Trust, the Kandla Port Trust informed the petitioner that for the subject work i.e. upgradation of Barge Handling Facilities the service tax is not applicable. It is submitted that therefore, when petitioner paid service tax mistakenly the Assistant Commissioner ought to have condoned the delay and ought not to have rejected the refund claim on the technical ground of limitation. Making above submissions and relying upon the decision of the Division Bench of this Court in the case of Texcellence Overseas vs. Union of India reported in (2013) 293 ELT 496 as well as de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge Handling Facilities the service tax is not applicable. Despite the above, the refund claim has been made on 19.08.2016. In the petition, delay of approximately more than 2 years has not been explained at all. If according to the petitioner, the petitioner came to know that for the works Upgradation of Barge Handling Facilities , no service tax is applicable and that earlier they paid the tax mistakenly, in that case, immediately on receipt of the communication dated 24.06.2014 and within some reasonable time, the petitioner ought to have submitted the application for refund. Even after communication dated 24.06.2014, the refund application has been made after two years and two months. The delay for the interregnum period has not been e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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