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TMI Blog2023 (11) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... lant to file the refund claim within a period of one year from the date (6.6.2017) of payment of service tax. Further, section 142(5) expressly states that the limitation provided in sub-section (1) of section 11B is not applicable - Thus it is only in case of unjust enrichment to the appellant that he can be denied the refund of the amount which was available to him under existing/ erstwhile law. The appellant was eligible for Cenvat Credit of the amount paid in terms of Rule 6 (3) of the erstwhile statute had there been no cancellation of the contract for providing the service, the adjudicating authority below have held that the assessee in the present case has not been unjustly enriched. In the present case from the apparent admission for the fact that the agreement for providing service was got cancelled at the stage when no service was yet provided, there remains no scope for any service to be provided in future. Thus, there remains no occasion for any tax liability on the appellant and no authority with the Government to collect such an amount. In view thereof and in view of Article 265 of Constitution of India, the authority cannot retain the said amount. Thus, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding those services got cancelled. Pursuant whereto the credit notes were issued to the proposed recipients of the service. It is impressed upon that in view of the said cancellation, no service in fact was rendered by the appellant. Hence, the amount of Rs.18,09,321/- which they deposited prior cancellation of the agreement towards their liability to pay service tax no more remained the amount due to the Government Exchequer. Till the time the agreements got cancelled, the Goods and Service Tax Act of 2017 came into existence. Accordingly, the impugned refund was filed in terms of provisions of section 142 (5) of the CGST Act read with section 142 (3) thereof. It is impressed upon that in view of the said provision there arises no reason to invoke the time bar given under section 11 B of Central Excise Act. To impress upon ld. Chartered Accountant has relied upon the decision: 1. M/s. Jai Mateshwaari Steels Pvt. Ltd. vs. Commissioner, CGST Dehradun dated 11.02.2022 reported as 2022 (3) TMI 49 CESTAT, New Delhi 2. M/s. Doowon Automotive Systems India Pvt. Ltd. vs. Commissioner of GST Central Excise, Chennai dated 19.05.2022 reported in 2022 (5) TMI 984 CESTAT, Chennai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the assessee holding that the claim has been filed before the correct jurisdictional authority. The claim is very much available to the assessee and that there is no unjust enrichment involved in this case. The refund claim has still been rejected only one issue i.e. of time bar holding that the refund claim has not been filed within one year as is required under section 11B of the erstwhile Central Excise Act. Those findings have fully been endorsed and upheld by the Commissioner (Appeals) vide the impugned order under challenge. In the light of these observations, the narrow point of adjudication for the present appeal is as to whether the refund claim in the given set of circumstances where it has been filed after introduction of CGST Act gets hit by limitation. For the purpose, the relevant provision of the CGST Act section 142 (5) is foremost perused under which the impugned claim has been filed. It reads as follows:- (5) Every claim filed by a person after the appointed day for refund of tax paid under the existing law in respect of services not provided shall be disposed of in accordance with the provisions of existing law and any amount eventually accruing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 142(9)(b) of the CGST Act which provides as follows: (a) Where return filed under the existing law is revised after the appointed day but within the time limit prescribed for revision of return under the existing law; (b) Pursuant to filing of revised return, when closing balance of Cenvat credit increases as compare to closing balance of Cenvat credit in original return; (c) In this case the registered person is required to file refund for the differential amount; (d) The differential amount shall be refunded to registered person in cash as per provisions of existing law (e) Notwithstanding anything to the contrary contained in the said law other than the provisions of sub-section (2) of Section 11B of the Central Excise Act, 1944. 5.2 Further, I find that the words notwithstanding anything contrary contain in said law means that the provisions of this Section will prevail over provisions of existing law except provision of Section 11B(2) of Central Excise Act, 1944. The Section 11B(2) of Central Excise Act, 1944 contains provisions relating to granting of refund in case of unjust enrichment. Thus, as far as conditions of Section 142(9)(b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, there remains no scope for any service to be provided in future. Thus, there remains no occasion for any tax liability on the appellant and no authority with the Government to collect such an amount. In view thereof and in view of Article 265 of Constitution of India, the authority cannot retain the said amount. I draw my support from the decision of Hon ble Supreme Court in the case of Collector of Central Excise, Chandigarh v. M/s. Doaba Cooperative Sugar Mills Ltd., Jalandhar - 1988 (37) E.L.T. 487 (S.C.) = 1988 Supp. SCC 683; Escorts Ltd. v. Union of India - [1994] Supp. (3) SCC 86 Rule 11 before and after amendment or Section 11B cannot affect Section 72 of the Contract Act or the provisions of Limitation Act in such situations. My answer to the claims for refund broadly falling under the three groups of categories enumerated in paragraph 6 of this judgment is as follows : Where the levy is unconstitutional - outside the category (I) provisions of the Act or not contemplated by the Act In such cases, the jurisdiction of the civil courts is not barred. The aggrieved party can invoke Section 72 of the Contract Act, file a suit or a petition under Article 226 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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