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TMI Blog2018 (12) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... rom service tax by virtue of exemption Notification No.25/2012ST dated 20.06.2012 and in particular, Entry No.14 therein. The relevant portion of which reads as under : "14. Services by way of construction, erection, commissioning or installation of original works pertaining to - (a) an airport, port or railways, including monorail and metro." 3. By Notification dated 01.03.2015 which came into effect on 01.04.2015, the words "airport" and "port" were omitted from the said Entry No.14 of the Notification dated 20.06.2012. Thus, the exemption of the construction, erection, commission or installation of works pertaining to airports and ports was withdrawn w.e.f. 01.04.2015. Accordingly, the service providers would levy service tax on such services starting from 01.04.2015. The petitioner discharged service tax liability to the tune of Rs. 102.53 lakhs for the period between 01.04.2015 to 31.12.2016. 4. Subsequently, Section 103 was inserted in the Finance Act, 1994 by virtue of Section 159 of Finance Act, 2016 w.e.f. 14.05.2016. This newly inserted Section 103 granted retrospective exemption in respect of services of construction, erection, commissioning or instal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her two petitions namely Writ Petition Nos. 3391 of 2018 and 3388 of 2018 are concerned, the relevant facts till this stage are similar. The only difference is that these petitioners after having applied for necessary certificate to the concerned Ministry on 17.10.2016, were issued the Certificates on 31.01.2017 and they applied for refund on 31.03.2017. 8. All the refund applications of the petitioners came to be dismissed by separate orders which are challenged in the respective petitions. Since the gist of these orders is similar, we may refer to the one dated 31.01.2018 which is challenged by the petitioner in Writ Petition No.1910 of 2018. In this order, the said authority referred to the provisions contained in Section 103 of the Finance Act, 1994 and held that the refund applications were barred by the period of limitation of six months prescribed therein. 9. In such background, the petitioners have challenged the respective impugned orders rejecting the refund applications. They have also challenged the vires of Section 103 of the Finance Act, 1994. 10. In such background, Counsel for the petitioners raised following contentions : (a) In order to claim refund, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Subsection (1) of Section 103 thus, while granting exemption from payment of service tax for the past period in respect of contracts which were entered prior to 01.03.2015, made it conditional that the certificate being issued by the concerned Ministry that the contract for such service had been entered before 01.03.2015. 13. Subsection (2) of Section 103 pertains to refund to be granted of the service tax already paid. It provides that the refund shall be made of all such service tax which has been collected but would be refundable under subsection (1). Subsection (3) of Section 103 starts with a nonobstinate clause, which provides that notwithstanding anything contained in Section 103, an application for claim of refund of service tax shall be made within a period of six months from the date on which the Finance Bill 2016 receives the assent of the President. 14. From the perusal of this provision, one thing becomes clear that the respondents cannot link the requirement of refund application being made within the period of limitation envisaged in subsection (3) of Section 103, with the condition of production of certificate from the Ministry that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce this exemption was granted with retrospective effect, the question of refund would arise. It is in this context, subsection (2) of Section 103 envisages refund of the tax already collected and deposited. Subsection (3) however, provides a limitation of making refund application and as noted starts with nonobstinate clause. The period of limitation of six months for making the refund application is, therefore, notwithstanding anything contained in the chapter, in which the said provision is contained. Section 103 of the Act is thus a complete mechanism for recognition of exemption, refund of the tax so exempted with retrospective effect and the mechanism for claiming such refund. Such limitation period cannot be interpreted as merely directory, particularly when subsection (3) in addition to providing the period of limitation, overrides any other provisions of the chapter, which may be to the contrary. 17. In a recent judgment, the Supreme Court in the case of ALD Automotive Pvt. Ltd. Vs. Commercial Tax Officer, (2018) 58 GSTR 468 considered the limitation provision contained in Tamil Nadu Value Added Tax Act, 2006 for availing input tax credit not claimed in a p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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