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TMI Blog2022 (8) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be filed within a period of six months from the date of enactment of the Finance Bill 2016 i.e. 14.05.2016. It is not in dispute that the refund claim was actually filed on 05.10.2017 which is beyond the period of six months contemplated under section 102 (1) of the Finance Act. In the instance case service tax was liable to be paid at the relevant time and it is only subsequently that by a retrospective amendment, exemption was granted with a specific condition that refund could be claimed by filing it within six months from the date of enactment of the Finance Bill 2016. The refund claim had, therefore, to be filed within six month from 14.05.2016, but it was filed beyond the said period. The contention of the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance Act 1994 [the Finance Act] as made applicable to service tax matters by section 83 of the Finance Act. 2. The appellant is a partnership firm engaged in the construction of complex for Government, Local authority or a Governmental authority. During the period for which refund has been claimed, the appellant was providing construction service for the following projects to the Central Public Works Department [CPWD], Lucknow: (i) construction of permanent infrastructure for BOP, SSB at Karkhola under Batallian Hq., Kheri; (ii) Development of permanent infrastructure of 39 Batalian Hq., Palia; (iii) construction of A-1 Type school building, 9 nos. staff quarters and boundary wall etc. for Kendriya Vidyalaya, Pilibhit (U.P.). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of a Notification dated 01.03.2015 that was made effective from 01.04.2015. The relevant portion of the said Notification is reproduced below: 1. In the said notification,- (i) ------------------- (ii) in entry 12, items (a), (c) and (f) shall be omitted; (iii) ------------------ (iv) -------------------- 5. However, the above exemption was restored on further amendment of the Notification dated 20.06.2012, by insertion of entry no. 12A in the Notification dated 01.03.2016. The relevant entry is reproduced below: (iv) after entry 12, with effect from the 1st March, 2016, the following entry shall be inserted, namely- 12A. Services provided to the Government, a local authority or a governmental authority by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im for Rs. 72,96,702/- on 05.10.2017 for the period from 01.04.2015 to 29.02.2016. The Department noticed some defects in the said refund claim and returned the same to the appellant. The appellant re-submitted the completed refund claim on 22.01.2018. 9. On scrutiny of the refund claim, the Assistant Commissioner rejected the refund claim by order dated 28.11.2018 for the following reasons: (i) Refund claim was barred by limitation as it was filed much after the limitation prescribed under Section 102 of the Act; (ii) The incidence of service tax was passed on to their customers; and (iii) Service was not provided to Government, local authority or the Governmental authority, hence no exemption was available and service tax was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hit by incidence of duty initially passed on when it was adjusted by CPWD against subsequent bills/payments. In this connection reliance was placed on the decision of Supreme Court in Commissioner of Central Excise, Madras vs. Addition Co. Ltd. [2016 (339) ELT 177 (S.C.)]; and (v) Unjust enrichment provisions pertain to construction service and not sale of goods. Service tax is a destination based consumption tax. Hence, services are consumed at the first destination itself and no further supply of same in involved. In such a situation, there is no requirement of identifying the consumer who has consumed the tax, because the service tax is consumed at the first destination itself, i.e., at CPWD end. 12. Shri Madhukar Anand learned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to construction service for the period commencing from 01.04.2015 to 29.02.2016. At the same time, this section also provided that refund of service tax paid during the period from 01.04.2015 to 29.02.2016 has to be filed within a period of six months from the date of enactment of the Finance Bill 2016 i.e. 14.05.2016. It is not in dispute that the refund claim was actually filed on 05.10.2017 which is beyond the period of six months contemplated under section 102 (1) of the Finance Act. 16. The decision of the Karnataka High Court in KVR Construction and the decision of the Jharkhand High Court in G.B. Engineers relied upon by the learned counsel for the appellant would be of no benefit of the appellant in the present case. These were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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