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TMI Blog2021 (12) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... eof is the relevant date. Admittedly, the service tax paid by the appellant was provisionally for the services to be provided later on, but later on, no service has been provided by the appellant and the purchase orders were cancelled. In those circumstances, the amount so paid provisionally is required to be adjusted when the purchase orders were cancelled and the date of which the purchase orders were cancelled is the relevant date for filing the refund claim - it is clear that the refund claims were required to be filed within one year from the date of cancellation of the purchase orders in terms of Section 11B (5) Explanation B (eb) of the ACT, 1944. The relevant date for filing the refund claim is the cancellation of the purchase orders in terms of Section 11B (5) Explanation B (eb) of the Act - If the refund claims are filed within one year from the date of cancellation of the purchase orders, the same shall be entertained as the refund claim are filed in time. The issue of passing the bar of unjust enrichment shall be examined by the adjudicating authority based on documents placed by the appellants - matter remanded back to the adjudicating authority who shall ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant paid service tax on advances but the services were rendered under GST regime, therefore, it was mandatorily requirement to adjust the service tax amount towards GST liability or seek refund of excess GST paid by the appellant. Against the said order, the appellant is before me. 3. Ld. Counsel appearing on behalf of the appellant submits that the appellant is entitled for refund of service tax paid on services which were not rendered by it. It is submission of the Ld. Counsel that once the purchase orders were cancelled, the agreement to provide service also comes to an end. Therefore, the appellant does not fall within the ambit of charging provisions of Section 65B(44) of the Finance Act, 1994 as the same has not been satisfied. It is further submitted that the appellant did not carry out any activity for its ccustomers against the cancelled purchase orders and the relation of service provider and service recipient between the appellant and its customers lapsedas a result of cancellation of purchase orders. Lastly, the appellant has not received any consideration as the advances received by it were either refunded in entirety or adjusted against future purchase orders. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice Tax Rules permits the assessee to take credit of excess service tax paid, it loses the characteristics of tax and is merely a deposit. Therefore, the provisions of Section 11B of the Act are not attracted. Further, relied on the decision of Natraj Venkat Associates vs. Assistant Commr., ST, 2010 (17) S.T.R. 3 (Mad.) to say that if what was paid cannot be taken to be duty of excise, the bar of limitation under Section 11B (1) of the Act cannot be applied. She also relies on the case of CCE ST vs. M/s MadhviProcon Pvt. Ltd., 2015 (38) S.T.R. 74 (Tri. Ahmd). 7. She further submitted that the doctrine of unjust enrichment is not applicable as the purchase orders were cancelled, the appellant refunded/adjusted the entire advance amount received by it, including the service tax element, and therefore, the burden of amount deposited with the government was not passed on to third persons. It was further submitted that the amount of service tax deposited on advances received are held as Service tax on customer advances . This amount is shown as Balance with Statutory/Government Authorities and certified copy of detailed breakdown of Balances with Government authorities is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed against eight purchase orders, but they are reduced to three purchase orders after technical glitches. 10. He further submitted that no evidence of adjustment of advance as there is an ambiguity about the amount of advance received as also about the purchase order against which received. 11. He further submitted that the cancellation of purchase orders not material when replacement purchase orders issued simultaneously, and the appellant was aware about the need to cancel the purchase orders due to technical reasons way back in September 2017. He also submits that the refund being sought on account of their inability to transit the subject amount of GST through Trans-I and the appellant knew before its filing that they would have to claim refund. It is his submission that the refund claim filed under Section 11B has to be processed under the said provisions. He relied on the decision of the Hon ble Gujarat High Court in the case of Ajni Interiors vs. UOI 2019 (9) TMI 529 (Gujarat High Court) and heavily relied on the decision of Hon ble Apex Court in the case of Mafatlal Industries Ltd v/s UOI1997 (89) ELT 247 (S.C.) wherein it was held that refund application fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable as in that case refund of service tax paid by mistake was sought refund but there is not the said case. 16. He further submitted that the refund claim is hit by bar of unjust enrichment as the appellant has not attached the attested/verified/certified by anybody, let alone a Chartered Accountant, so is of no evidentiary value as such. Nor are any other documents, most of which are purportedly emails exchanged between employees of the Appellant or them and the service recipients of the employees. 17. He further submitted that the interest under Section 11BB of the Central Excise Act, 1944 would become payable only after the refund is held disbursable as refund itself is not admissible so the question of payment of interest does not arise. Further, even if the refund is held admissible, interest would be payable only after 3 months from the date of filing of application at prescribed rate. Therefore, he prayed that the refund claim is to be rejected. 18. Heard the parties and considered the submissions. 19. The facts of the case which arises out of the arguments and records placed before me are that initially the appellant filed refund claim with regard to eight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Principal Commissioner of Central Excise or Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial Gazette. (5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of Explanation . - For the purposes of this section, - (A) refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) relevant date means, - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were cancelled.In those circumstances, the amount so paid provisionally is required to be adjusted when the purchase orders were cancelled and the date of which the purchase orders were cancelled is the relevant date for filing the refund claim. 23. From examining the papers, it is clear that the refund claims were required to be filed within one year from the date of cancellation of the purchase orders in terms of Section 11B (5) Explanation B (eb) of the ACT, 1944. 23.1 From the papers placed before me, it is not coming out whether the said refund claims have filed within one year from the date of cancellation of the purchase orders or not,the same is required to be examined by the adjudicating authority. 24. Further, I find that both sides have relied on various judicial pronouncements, but, in the case of Mafatlal Industries (supra)if any amount is payable by the assessee and have been paid in accordance with law, the refund of same is governed by Section 11B of the Act. Therefore, the refund claim is required to be filed within one year from the relevant date. 25. In this case, I hold that the relevant date for filing the refund claim is the cancellation of the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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