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TMI Blog2019 (7) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore required to grant refund if the refund application is within the time-limit prescribed under Section 11B and not otherwise. Appeal allowed in part and part matter on remand. - Service Tax Appeal No. 42635 of 2018 - FINAL ORDER NO. 40958/2019 - Dated:- 19-7-2019 - MR. P. DINESHA, MEMBER (JUDICIAL) Shri. G. Vijayabalan, Advocate for the Appellant Shri. S. Govindarajan, Authorized Representative for the Respondent ORDER By this appeal, the appellant has questioned the denial of refund under Section 104 of the Finance Act, 2017. 2.1 Briefly, the appellant was allotted and leased an industrial plot by SIPCOT for 99 years and a one-time developm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an, Ld. AR, appeared for the Revenue. 4. Ld. Advocate for the appellant pointed out that the issue here being identical with that involved in the case of M/s. Roop Automotives Ltd. Vs. The Commissioner of G.S.T. Central Excise in Service Tax Appeal No. 42701 of 2018 that was argued, he would adopt the same arguments put forth by the Ld. Advocate in the other case. 5. I have heard the rival contentions and gone through the documents placed on record. 6. I find that the issue as pointed out by the Ld. Advocate, involved in the above case is more or less identical to the issue involved in the case of M/s. Roop Automotives Ltd. (supra). In the said case, after analysing the arguments as also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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., Chapter VA per se. A possible takeaway from Section 104, read as a whole, is vide Sub-Section (1) the applicability of charging Section is excluded and that refund of Service Tax paid, if any, has to be claimed per application within a period of six months from the date on which the Finance Bill, 2017 received the assent of the President. Clearly, Section 104 does not prescribe any format for refund claim and perhaps the only recourse therefore is to file such an application under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difficulty in mentioning that an application referred to is a complete application since filing of an empty application is not an empty formality; it has to go with all enclosures and documentary evidences in support for enabling the appropriate officer to understand the issue from such a complete application and thereafter, it is for that officer to call for additional documents/evidences, if need be. 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.E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justitiae where the tragic sequel otherwise would be wholly inequitable. ...Justice is the goal of jurisprudence -processual, as much as substantive. 29.In State of Punjab v. Shamlal Murari [(1976) 1 SCC719 : 1976 SCC (L S) 118] the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that: (SCC p. 720) Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. In Ghanshyam Dass v. Dominion of India [(1984) 3 SCC46] the Court reiterated the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, the benefit cannot be denied. It c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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