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TMI Blog2019 (7) TMI 1416X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that they were unable to make the claim before 30.09.2017 is not without substance. The rejection of refund claim on the ground of time bar is unjustified - appeal allowed - decided in favor of appellant. - ST/42068/2018 - Final Order No. 40927/2019 - Dated:- 9-7-2019 - Smt. Sulekha Beevi C.S, Member (Judicial) For the Appellant: Shri S. Viswanathan, Adv. For the Respondent: Shri L. Nandakumar, AC (AR) ORDER Brief facts are that the appellants filed refund claim of ₹ 10,76,803/- on 16.11.2017 for refund of service tax paid on development charges, as exempted, with retrospective effect under section 104 (1) of Finance Act, 1994. As per sub-section 104(1) of Finance Act, 2017, the refund claim has to be filed within six months from the date on which the amendment receives assent of the President of India. The assent was granted on 31.03.2017. Thus, the refund ought to have been filed on or before 30.09.2017. The refund claim was filed only on 16.11.2017, which is beyond the due date. The department issued show-cause notice proposing to reject the refund claim as time-barred. After due process of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel submitted that the refund cannot be denied as being time-barred for the reason that section 104 does not state specifically so as to who has to file the refund. It merely lays down provision for limitation without identifying, who has to apply for refund. Further, when SIPCOT is the intermediary who has collected refund, it is impracticable for the appellant to obtain documents and file the refund within a period of six months, without sufficient cooperation from SIPCOT. He relied upon the decision in the case of M/s. JSW Dharmatar Port Pvt. Ltd., Vs Union of India reported in 2019 (20) G.S.T.L.721 (Bom.). The facts in the said case are that Section 103 was inserted in Finance Act with effect from 14.05.2016, wherein, it was provided that the service tax paid on construction activities for the Ministry of Civil Aviation or Ministry of Shipping was exempted from service tax. The service provider had to obtain a certificate from the concerned Ministries to claim refund. The Hon ble Court held that no person can be expected to perform a task beyond his control and, therefore, the time taken to obtain the certificates from the Ministry was ignored for computing the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustrial 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. 7. As seen from the above quoted Section, the refund has to be made of all the service tax which has been collected. Sub-section (3) of the said provision specifies that the 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. The said bill received the assent of the President on 31.03.2017. Thus, the refund claim, ought to have been filed on or before 30.09.2017. The appellant has filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nistry to get the refund of service tax. The Hon ble High Court held that delay in obtaining the certificate from the Ministry has been excluded for computing the period of limitation. The discussion made by the Hon ble High Court is relevant and noteworthy. 13. Sub-section (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 sub-section (1). Sub-section (3) of Section 103 starts with a non-obstinate 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 sub-section (3) of Section 103, with the condition of production of certificate from the Ministry that the contract had been entered into before 1- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 elsewhere cannot be adopted ignoring the period prescribed in sub-section (3) of Section 103. 10. It is noteworthy to mention that in section 103, there is no confusion as to who should make the application for refund. The service tax therein was paid directly by the service provider and, therefore, after obtaining certificates from the concerned Ministry, the application for refund can be made. In the present case, the service tax was paid by the appellants to the service provider [SIPCOT], who has deposited the same with the Central Government. Thus, it was indeed necessary for the appellant to approach SIPCOT to get necessary information as to whether they have deposited the tax and obtain documents from SIPCOT for filing the refund claims. The position is, therefore, almost analogous with the condition in section 103, which mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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