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TMI Blog2019 (7) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... collect the tax, retention of such tax collected is the challenge. The purpose of the very insertion of Section 104 would become redundant if such an artificial fetter is allowed to prevent the administration of beneficial legislation, by which the very purpose gets defeated. Hence, shall could and is only directory - Section 104 is not a self-contained one even though it is a special provision since filing application for refund and the Form required thereto not being prescribed, it rests on Section 11B and the rules and regulations therein. It is a special provision for extending the benefit and hence, when the eligibility otherwise is not questioned, the benefit cannot be denied. It cannot be said that only the limitation clause applies and not when it comes to the Form of application since it is the settled position of law that a Section has to be applied in full and that there is no scope for selective application. The time-limit prescribed under Section 104 (3) is only directory, but however, the time as well as the procedure prescribed under Section 11B applies in full. The Adjudicating Authority is therefore required to grant refund if the refund application is within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the Revenue that the taxpayer had any role in delayed procurement of No Claim certificate and the relevant documents/evidences thereafter that are necessary attachments for the refund application. 2.4 The assessee files a detailed reply along with necessary documents, but however, vide Order-in-Original No. 90/2018-RF dated 24.05.2018, the Adjudicating Authority rejects the refund claim. Aggrieved, the assessee files an appeal before the Commissioner of G.S.T. and Central Excise (Appeals-II), Chennai, who vide impugned Order-in-Appeal No. 490/2018 (CTA-II) dated 24.10.2018 also rejects the refund and the appeal by upholding the Order-in-Original and hence, the present appeal by the assessee. 3. When the matter was called out on the date of hearing, Shri. Karthik Sundaram, Ld. Advocate, appeared for the assessee and Shri. S. Govindarajan, Ld. AR, appeared for the Revenue. Upon being asked, both of them agreed that this Bench has jurisdiction to decide the appeal as no interpretation of any notification/classification/valuation issue is involved. 4. The Ld. Advocate for the appellant contended that even though refund claim is unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um, salami, cost, price, development charge or by whatever name called) in respect of taxable service provided or agreed to be provided by a State Government industrial development corporation or undertaking to industrial units by way of grant of long term lease of thirty years or more of industrial plots, shall be levied or collected during the period commencing from the 1st day of June, 2007 and ending with the 21st day of September, 2016 (both days inclusive). (2) Refund shall be made of all such service tax which has been collected, but which would not have been so collected, had sub-section (1) been in force at all material times. (3) Notwithstanding anything contained in this Chapter, 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, 2017 receives the assent of the President. 8.2 The above Section starts with a non obstante clause operating as an exclusion clause to exclude the charging Section 66 or Section 66B. Further, Sub-Section (3) of Section 104 also starts with a non obstante clause, to exclude anything contained in this Chapter i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.4 In this context, it is very useful to refer to a recent judgement of the Hon ble Supreme Court in the case of M/s. JK Jute Mill Mazdoor Morcha Vs. Juggilal Kamlapat Jute Mills Company Ltd. in Civil Appeal No. 20978 of 2017 dated 30.04.2019 and at paragraph 10, their Lordships observe as under : 10.Even otherwise, we are of the view that . . . . We must never forget that procedure is the handmaid of justice, and is meant to serve justice. This Court, in Kailash v. Nanhku and Ors., (2005) 4 SCC 480,put it thus: 28.All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout the authority of law and the statute also, by way of insertion of new Section 104, has made it clear that no tax shall be collected and thereby has also provided for granting refund of such tax collected in certain special cases. So, can the authorities still hold back the tax so collected, with them, not because of the appellant being ineligible, but because of an artificial fiction? Thus, when the power itself not being there to collect the tax, retention of such tax collected is the challenge. The purpose of the very insertion of Section 104 would become redundant if such an artificial fetter is allowed to prevent the administration of beneficial legislation, by which the very purpose gets defeated. Hence, shall could and is only directory. 9.3 It is also for the other reason, as observed by me in earlier paragraphs, that Section 104 is not a self-contained one even though it is a special provision since filing application for refund and the Form required thereto not being prescribed, it rests on Section 11B and the rules and regulations therein. It is a special provision for extending the benefit and hence, when the eligibility otherwise is not questioned, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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