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TMI Blog2022 (8) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... use of action for refund of service tax arises only on cancellation of the agreement to provide taxable service? HELD THAT:- Admittedly, the GST Act has come into force w.e.f., 01.07.2017. It is not in dispute that agreements with three prospective purchasers have been cancelled during 2017. The writ petition filed against cancellation of No Objection by HAL has been disposed on 29.5.2020. It is obvious that if a project does not commence, the flat buyers might seek cancellation of agreements as they cannot wait indefinitely. The refunds have been made in July 2017 and the application has been filed in August, 2017. Section 142(5) of the GST Act makes it clear that the claim for refund must be processed notwithstanding anything con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal is correct in law in rejecting the refund of Service Tax when no taxable service was provided and the payment of service tax was a mistake of law and in which case the limitation provisions of Section 11 B of the Central Excise Act, 1944 as made applicable to Service Tax are not applicable as per the settled law? 4. Whether the relevant date for computation of the limitation period under Section 11 B of the Central Excise Act, 1944 should be reckoned from the date of cancellation of the agreement to provide the taxable service since the cause of action for refund of service tax arises only on cancellation of the agreement to provide taxable service? 2. Sri Nagaraja, learned Advocate for the appellant does not press sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd application. By Order-in-Original dated 07.08.2018 the Assistant Commissioner, ED-I, GST, East Commissionerate, Bengaluru, rejected the claim holding that the refund claimed was hit by limitation as per Section 11B of the Central Excise Act, 1944 and the same was confirmed in Order-in-Appeal dated 01.02.2019 passed by the Commissioner, Appeals-I. On further appeal, the CESTAT has dismissed the same by Final Order bearing No.20467/2019, dated 12.6.2019. 5. Sri Nagaraj submitted that in terms of Section 142(5) of the GST Act, 2017, any claim for refund could be decided notwithstanding anything contained with reference to Section 11B of the Central Excise Act, 1944. In support of his contention, he placed reliance on Commissioner of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ually accruing to him shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944. (emphasis supplied) 11. The above provision makes it clear that the claim for refund must be processed notwithstanding anything contrary contained in Section 11B of the Central Excise Act. 12. It may be relevant to record that in the case of M /s. Shiv Shankar Dal Mills etc. etc., v. State of Haryana and others etc., (AIR 1980 SC 1037), the Hon'ble Supreme Court of India speaking through Justice Krishna Iyer has held thus: This big bunch of writ petitions shows how litigation has a habit of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake. Where public bodies, under colour of public laws, recover people's moneys, later discovered to be erroneous levies, the dharma of the situation admits of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. Nor is it palatable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of alternative remedy , since the root principle of law married to justice, is ubi jus ibi remedium. (Emphasis Supplied) 13. In view of the above, this appeal merits consideration. Hence, the following: ORDER i) Appeal is allowed. ii) The order dated 12.06.2019 passed in Final Order No.20467/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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