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TMI Blog2021 (2) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed in sub-section (3) of section 102 of the Finance Act or sub-section (3) of section 104 of the Finance Act is applicable, the time limit prescribed in section 11B of the Excise Act would not be applicable. Stipulation in section 83 of the Finance Act that the certain sections of the Excise Act shall apply so far as may be , in relation to service tax as they apply in relation to duties of excise have not been examined. Though section 102 or section 104 of the Finance Act do not prescribe any format but a procedure for filing an application for refund of service tax has been prescribed in the Trade Notice and the Circular. It is also not the case of the appellant that the appellant was not aware of the procedure since it is the appellant that had placed the Trade Notice and the Circular - Such being the position, it is not possible to hold that the limitation for making an application for refund of service tax would be that as provided in section 11B of the Excise Act. The Application for refund of service tax has to be made within the period stipulated in sub-section (3) of section 102 of the Finance Act. Whether the appellant had submitted the application for refund of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds do indicate that correspondence did take place between the Department and the appellant in connection with this application. This Application was filed beyond the period prescribed in sub-section (3) of section 102 of the Finance Act. In the absence of any provision for condoning the delay in filing the application, the Commissioner (Appeals), committed no illegality in upholding the order passed by the Assistant Commissioner rejecting the application filed by the appellant for refund of service tax on the ground that it was not filed within the time stipulated - Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, fitting out, repair, maintenance, renovation or alteration of- (a) a civil structure or any other original works meant predominantly for use other than for commerce, industry or any other business or profession; (b) a structure meant predominantly for use as- (i) an educational establishment; (ii) a clinical establishment; or (iii) an art or cultural establishment; (c) a residential complex predominantly meant for self-use or for the use of their employees or other persons specified in Explanation 1 to clause (44) of section 65B of the said Act, under a contract entered into before the 1st day of March, 2015 and on which appropriate stamp duty, where applicable, had been paid before that date. (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 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." 4. The Finance Bill 2016 received the assent of the Preside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: "9.2 Further, to examine whether the online refund request filed on 13.10.2016 through ACES be considered for filing within time limit, it is submitted that although copy of online refund request filed on 13.10.2016 was submitted to this office but alongwith the documents filed on 20.12.2016, which is beyond the time limit as discussed above. Further, to examine the authenticity of online refund request, the ACES portal was accessed and any such request was not found to be pending. It is also observed that the helpline facility of the ACES portal was also accessed through [email protected] but status of such request was not confirmed by the helpline. Hence, it appears that the online refund request filed on 13.10.2016 could not be validated. 10. I find that in view of the provisions of Section 102(3) of the Finance Act, 1994 governing the refund claim and the circumstances prevailing, there are no grounds left to consider the refund request of the assessee that appears to be time barred in all respect. 11. On the basis of foregoing discussions and in the light of provisions stated above, I am of the considered opinion that in the instant case, amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of appellants to have filed online request. From the copy of online claim printout submitted by the appellants, it is seen that appellants entered "offline" against the item "mode of submission of supporting documents." That being the case, appellants have not explained more than two months delay in submitting documents i.e. if they themselves stated in an online application on 13.10.2016 that supporting documents would be submitted offline, why did they submitted such documents on 20.12.2016 only when they were aware that the last date for filing claim was 13.11.2016. Such behavior raises doubt over fact of filing online application which could not be ascertained by the AA. To get the refund, one has to submit hard copies of such application along with the documents. In absence of such copies processing of refund application, could not in any way have been done by the authorities. It is clear that appellants had not filed the hard copy of application along with requisite documents on time. They were actually submitted on 20.12.2016. However, no cogent reason has been provided by the appellants as to why such submission of hard copies was delayed. In terms of Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also his submission that the provisions of section 11B of the Excise Act would not have any application to the present case. 15. The submissions advanced by the learned Consultant for the appellant and the learned Authorized Representative of the Department have been considered. 16. The issue that arises for consideration in this appeal is as to whether the appellant had submitted the application for refund of service tax within the stipulated time since the application filed for refund has been rejected for the sole reason that it was not submitted within the time prescribed. 17. As noticed above, section 102 of the Finance Act deals with special provision for exemption in certain cases relating to construction of Government buildings. Sub-section (1) provides that notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the period commencing from April 01, 2015 and ending with February 29, 2016 in respect of taxable services provided to the Government, a local authority or a Governmental authority, by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or altera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the User ID and password. (iv) Selects RET from the main menu and further chooses required activity such as e-filing/amending/Revise return as the case may be and uploads the return. (v) Returns uploaded through this procedure are validated by the ACES before acceptance into the system which may take up to one business day. Assessee can track the statue of the return by selecting the appropriate option in the RET sub menu. The status will appear as "uploaded" meaning under process by ACES, "Filed" meaning successfully returns can be resubmitted after corrections. (vi) Returns can also be prepared and filed on line by selecting the 'File Return' option under RET module after logging into the ACES. (vii) All validations are thrown up during the preparation of the return in this mode and the status of the return filed using the online mode is instantaneously shown by ACES. (viii) The Service Tax returns can be modified once as per rules up to 90 days from the dated of filling the initial return. Service Desk In case of any difficulty in accessing or using the ACES Application, assesses can seek help of the ACES Service Desk by sending e-mail to aces.servicedesk@icegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise returns are filed online in ACES or uploaded to the system using the off-line utility, the same can not be modified or cancelled by the assessee. The Service Tax returns, however, can be modified once as per rules up to 90 days from the date of filing the initial return. (ix) Self-assessed CE returns, after scrutiny by the competent officer, may result into modification. Both the 'Original' and the 'Reviewed' return can be viewed by the assessee online. 21. The Circular also deals with validation of the entries made while filling return and they are as follows: d. Validation of the entries made while filling return 1. At the time of making entry in the electronic format of the relevant return, the software does some preliminary validation for ensuring correctness of data, either concurrently or at the time of saving/ submitting the return. This validation process is automated. The user is prompted by the application software to correct the particulars entered wherever required. In respect of certain entries, although the application alerts the assessee about any entry found erroneous or inconsistent, as per the automated validation process, the assessee is still allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, 2016 and so it was within time and in any view of matter, in view of the provisions of section 83 of the Finance Act, section 11B of the Excise Act would be applicable and the application for refund could be filed within one year from the relevant date. In support of this contention reliance has been placed upon a decision of a learned Member of the Tribunal in M/s Roop Automotives Ltd. vs. The Commissioner of G.S.T. & Central Excise, Chennai Outer Commissionerate [2019 (7) TMI 907- CESTAT CHENNAI]. 25. The submission advanced by the learned Consultant for the appellant regarding the applicability of section 11B of the Excise Act needs to be first addressed because if it is accepted it may not be necessary to examine whether the appellant had actually submitted the application on-line on October 13, 2016 since the hard copy of the refund application, in that case, was filed within one year. 26. As noticed above, initially by Notification dated June 20, 2012 the services provided by the appellant to Governmental authority or local authority for construction, erection, commissioning etc., were declared as exempted service. This exemption was subsequently withdrawn by Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to service tax as they apply in relation to a duty of excise:- **** 11B **** " 29. Though section 11B of the Excise Act has been mentioned in section 83 of the Finance Act, but what needs to be noticed is that the provisions of the Excise Act would apply, so far as may be, in relation to service tax as they would apply in relation to a duty of excise. Thus, if there is a specific provision in the Finance Act itself for claiming refund of service tax, the provisions of section 11B of the Excise Act dealing with refund would not apply. There cannot possibly be two time limits prescribed for making an application for refund of service tax. When the time limit prescribed in sub-section (3) of section 102 of the Finance Act or sub-section (3) of section 104 of the Finance Act is applicable, the time limit prescribed in section 11B of the Excise Act would not be applicable. 30. Learned Consultant for the appellant has, however, placed reliance on the decision of a learned Member of the Tribunal in Roop Automotive. After referring to the provisions of section 104 of the Finance Act, the learned Member held that the time prescribed in section 11B of the Excise Act, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for this, the only recourse is to Section 11B qua Section 83. The Revenue may take a stand that Section 104 (3) does not mention about the filing of any annexures, documentary evidences, etc., along with an application for refund, but no statute contemplates filing of an empty application seeking refund, without any documents/evidences, at least to the effect that the amount claimed as refund was in fact remitted to the Government account. A cursory look at the CBIC website (http.//www.cbic.gov.in/resources//htdocs-cbec/refund-rebate/refundrebate-docs.pdf;jsessionid=E715A9021149926E0FC4240BB1DC5D13) contains inter alia types of refund/rebate applications and the list of documents to be filed along with the applications. For an application for refund is contemplated only under Section 11B and a number of documents are mentioned to be filed along with the prescribed format. Hence, there may not be any 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y so far as may be , in relation to service tax as they apply in relation to duties of excise have not been examined. Though section 102 or section 104 of the Finance Act do not prescribe any format but a procedure for filing an application for refund of service tax has been prescribed in the Trade Notice and the Circular. It is also not the case of the appellant that the appellant was not aware of the procedure since it is the appellant that had placed the Trade Notice and the Circular. 34. Such being the position, it is not possible to hold that the limitation for making an application for refund of service tax would be that as provided in section 11B of the Excise Act. The Application for refund of service tax has to be made within the period stipulated in sub-section (3) of section 102 of the Finance Act. 35. It now needs to be examined as to whether the appellant had submitted the application for refund of service tax online on October 13, 2016. The appellant has placed reliance upon the Trade Notice dated September 17, 2009 regarding automating all major processes in Central Excise and Service Tax through ACES. In order to transact the business of ACES, a user has to firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant also showed "off-line" against the item "off-line". 39. It is, therefore, clear that though an attempt was made by the appellant to submit the application online but the process that was required to be undertaken for making an application online was not complied to with as even the regulation was not done. The application cannot be treated to have been filed on time. If there was any difficulty in submission the application, the appellant could have sought the help of the help desk but the appellant has not stated that he made an attempt to seek help. 40. The appellant, therefore, cannot contend that the online application was actually made on October 13, 2016 as there is nothing on the record to substantiate that such an application was actually filed. 41. The appellant filed a hard copy of the application only on December 20, 2016 in the office of the Assistant Commissioner and the records do indicate that correspondence did take place between the Department and the appellant in connection with this application. This Application was filed beyond the period prescribed in sub-section (3) of section 102 of the Finance Act. In the absence of any provision for cond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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