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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 ..... ained. 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. Courts have often hold that period of limitation for claiming refund is mandatory - Further, the contention that subsection (3) of Section 103 retains the period of limitation of one year prescribed in the Excise Act and is aimed to protect such refund application which cover the period beyond such period, cannot be accepted. Petition disposed off. - WRIT PETITION NO. 1910 OF 2018 WITH WRIT PETITION NO. 3388 OF 2018 WITH WRIT PETITION NO. 3391 OF 2018 - - - Dated:- 14-12-2018 - AKIL KURESHI M.S. SANKLECHA, JJ. Mr. Vikram Nankani, Sr. Counsel a/w Mr. Vipin Jain, Ms. Sparsh Prasad I/b P.K. Shetty for the petitioners Mr. Pradeep S. Jetly a/w Mr. J.B. Mishra for the respondents ORAL JUDGMENT : (Per Akil Kureshi, J.) 1. These petitions arise in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l works pertaining to an airport or port, under a contract which had been entered into before the 1st day of March, 2015 and on which appropriate stamp duty, where applicable, had been paid before that date, subject to the condition that Ministry of Civil Aviation or, as the case may be, the Ministry of Shipping in the Government of India certifies that the contract had been entered into before the 1st day of March, 2015. (2) Refund shall be made of all service tax which has been collected but which would not have been so collected had subsection (1) been in force at all material times. (3) Notwithstanding anything contained in this Chapter, an application for the 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. 5. We would revert back to the said provision later. For the time being, we may note that the refund of the tax for the past period would be granted, provided application for claim of refund is made within six months from the date on which the Finance Bill received the assent of the President. It is not in dispute that the bill received the assent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to curtailing the period of one year, prescribed in Section 11B of the Central Excise Act, which permits filing of refund claims within one year from the date when right to receive refund arise. It was also submitted that sub section (3) of Section 103 should be seen as an enabling provision, covering a period of refund which may be beyond one year. In the absence of sub section (3) of Section 103, it may be possible for the Revenue to argue that qua such period, the refund applications are barred by limitation. 11. On the other hand, learned Counsel for the Department opposed the petitions contending that Section 103 of the Finance Act, 1994 envisages grant of refund, subject to certain conditions. The period of limitation for making refund application is one of them and the same cannot be ignored. He relied on the decision of the Supreme Court in the case of Mafatlal Industries Ltd. Vs. UOI, 1997 (89) ELT 247 and submitted that the refund applications which are filed beyond the period of limitation, cannot be entertained. 12. If we analyze Section 103 of the Finance Act, 1994, we may notice that sub section (1) provides that notwithstanding anything contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f arbitrariness. Thus read, we need not hold the provision unconstitutional. Reading down a statutory provision in order to save it from the vice of unconstitutionality, is a well know interpretative technique often times employed by the Court. Even otherwise, the interpretation that we have adopted is reasonable. No person can be expected to perform a task beyond his control. On one hand, the statute requires the certificate of the concerned Ministry before exemption from duty can be claimed, at the same time, the statute mandates that the refund application must be made within a certain time frame. We are, therefore, of the opinion that the time consumed by the ministry in processing and granting certificate, as referred to in sub section (1) of Section 103, must be ignored for the purpose of computing the limitation for making refund application under sub section (3) of Section 103 of the Finance Act, 1994. 15. This conclusion, however, would not enable any of the petitioners to claim the refund. This is so because as noted, even ignoring the entire period that the Ministry had consumed in granting the certificate, none of the refund applications of the petitioners' would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Division Bench of Gujarat High Court had upheld the limitation provision contained in Rule 117 of Gujarat Service Tax Rules, 2017, prescribing limitation for claiming credit of the past taxes. 19. It can thus be seen that looking to the statutory provisions and the language used therein, Courts have often hold that period of limitation for claiming refund is mandatory. Further, the contention that sub section (3) of Section 103 retains the period of limitation of one year prescribed in the Excise Act and is aimed to protect such refund application which cover the period beyond such period, cannot be accepted. As noted, Section 103 contains a self contained code, a complete mechanism for claiming refund. For claiming refund under the said provision, limitation period prescribed else where cannot be adopted ignoring the period prescribed in sub section (3) of Section 103. 20. In view of the discussion, it is not possible to set aside the impugned orders passed by the concerned authorities, rejecting the petitioners' refund claims. However, the reasons that we have recorded are some what different from those recorded by the said authority. 21. All the petitions are disp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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