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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 ..... ices issued for the said services with reference to both of the said clients got cancelled. The appellant returned the invoice amount and refunded the said amount to those clients on 14.07.2017, 25.07.2017, 16.08.2017 and 13.09.2017. After refunding the same the appellants filed a refund application on 14.06.2019 to claim the refund of the amount of service tax as was deposited in respect of those invoices the amount whereof was refunded to the appellants. However the said refund claim was proposed to be rejected vide SCN No. 04/2020-21 dated 13.05.2020. The proposal of rejection has been confirmed initially vide the Order in Original No.03/2019-20 dated 16.06.2022. The appeal against the said order, filed by the assessee, has been rejected vide the impugned order under challenge. Being aggrieved the appellant is before this Tribunal. 2. I have heard Mr. A.K. Batra. ld. Chartered Accountant on behalf of the appellant and Mr. V. J. Saharan, ld. Authorized Representative on behalf of the Department. 3. Ld. Chartered Accountant has submitted that the appellants were though supposed to provide the construction services to their clients, however, due to certain circumstances the agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - nowhere provides for any relaxation of time limit for filing the refund claim under section 11B of Central Excise Act, 1944. Apparently and admittedly the refund is filed more than one year after the relevant date i.e. the date of payment. Hence there is no infirmity in the order under challenge. Appeal is accordingly prayed to be dismissed. 7. Having heard the rival contentions and perusing the entire record, I observe and hold as follows:- That the appellant had filed the impugned refund claim after the contract of the appellant with its service recipient got cancelled. The original adjudicating authority has adjudicated the impugned refund claim on four different counts:- 1) Whether the assessee has filed their refund clazim with the correct jurisdictional authority. 2) Whether the assessee has filed their refund claim within the period of one year as required under section 11B of the Act as applicable in service tax matters also. 3) Whether the refund claim is admissible to the assessee. 4) Whether any unjust enrichment is involved in this case or not. 8. Out of these four issues framed by the original adjudicating authority three issues have been decided in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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 as already observed above, the adjudicating authority below have held that the assessee in the present case has not been unjustly enriched. These observations are sufficient for me to hold that section 11B of erstwhile Act cannot at all be invoked, specifically the time bar therein, to rejected the refund claim as was filed under section 142 (5) of the CGST Act. The issue has no more been res integra. This Tribunal Bangalore Bench in the case of Punjab National Bank vs. Commissioner of Central Tax 2021 (52) GSTL 421 (Tri. Bang.) has already held as follows:- "5.1 Further I find that it is a settled legal position that if there is a conflict between the substantive provision of the statute and the Rules framed thereunder then it is the statute which will have a overriding effect and in the present case Section 142(9)(b) has a overriding effect over Section 11B of the Central Excise Act, 1944. If I analyze the provision of Section 142(9)(b) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled for cash refund in view of Section 142(9)(b) of the CGST Act but for the purpose of verification of original invoices/documents, I remand the case back to the original authority for the limited purpose of verification of the invoices/ documents. The original authority will grant the refund after verification of the document and after following the principles of natural justice. The original authority will decide within a period of three months from the receipt of the certified copy of this order. The appeal is accordingly disposed of by way of remand." (Emphasis supplied) 11. Coming to the plea raised on behalf of the Department as has been mentioned in para 5.2 of the order under challenge holding that since the amount was paid to the Government as service tax it is section 11 B only which shall be applicable. I observe that the tax liability arises towards an amount received for providing a service in the case when the service is either provided or is to be provided. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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