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TMI Blog2023 (12) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... ax directly to the Service tax Department. They paid the service tax to KMDA, who paid the tax in the Government Account. It is observed that the Appellant made sincere effort to file the refund claim well within the time limit of six months prescribed in Section 104(3). The delay in filing the refund with the service Tax department was only due to inaction by the service tax department and improper advice by KMDA. They have filed the refund claim well in time with KMDA with whom they paid the service tax. As the Notification 41/2016 was not clear with whom the refund application was to be filed, the delay has happened. Thus, the delay in filing the refund application with the service tax department was not due to the fault of the Appellant. Hon'ble Madras High Court in the case of M/S. GRAND TECHNOLOGIES VERSUS THE ASSISTANT COMMISSIONER OF GST CE, PUDUCHERRY [ 2022 (9) TMI 9 - MADRAS HIGH COURT] , allowed the refund claim on similar facts and circumstances by holding that the period of limitation prescribed in Section 104(3) is not applicable - the decision of Hon'ble Madras High Court is squarely applicable in this case. The impugned order rejecting the refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Authority. Accordingly, the Appellant filed a refund application for Rs.23,72,844/- on 27.09.2018 along with the relevant documents before the Ld. Assistant Commissioner of CGST CX, Ballygunge Division, Kolkata South Commissionerate which was subsequently transferred to Tollygunge Division being the proper jurisdiction for processing of the refund claim. On scrutiny of refund claim, a deficiency memo was issued to the Appellant on 04.12.2018 wherein the Appellant was asked to submit relevant documents with clarifications in support of the refund claim, which the Appellant submitted on 15.01.2019. 3. A show cause notice dated 19.02.2019 was issued to the Appellant proposing to reject the refund claim on the time bar ground . The Ld. Adjudicating Authority passed the Order-in-Original dated 03.02.2020, wherein he rejected the claim on the ground that the refund claim was filed beyond the period of six months as prescribed under Section 104(3) of Finance Act, 2017. On appeal, the Ld. Commissioner (Appeals) upheld the rejection on the same ground vide impugned order dated 30.03.2022. Aggrieved against the impugned order, the appellant filed the present appeal. 4. In their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of MDP Infra(India) Pvt. Ltd. Vs Commissioner of Customs, C.Ex and CGST ,reported in 2019(29) GSTL 296 (MP), wherein the Hon'ble Madhya Pradesh High Court upheld the rejection of the refund claim on time bar ground. The said decision has been upheld by the Hon'ble Supreme Court also in Civil Appeal No. 6335 of 2019. Accordingly, he submits that the impugned order has rightly rejected the refund claim and prayed for upholding the impugned order. 7. I observe that Notification No. 41/2016-S.T. dated 22-9-2016 exempts services received by way of grant of long-term lease of industrial plots from the State Government Industrial Development Corporation/undertakings. The said Notification extended the exemption to prior period by section 104 of the Finance Act 1994, by the Finance Act 2017 for the period 1.6.2007 to 21.9.2016. Section 104(3) prescribed a time limit of 6 months to file the refund application. But, the Notification is silent about the authority with whom the refund application is to be filed. Normally, the refund application is to be filed with the Service tax department. But, the Appellant in this case has not paid the service tax directly to the Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider the application filed by the petitioner before PIPDIC as a refund claim under Section 11B filed before the Authorities. 24 . However, the power endowed upon this Court in terms of Article 226 of the Constitution of India is substantial and wide, facilitating one to adopt a holistic perspective of all issues in arriving at a decision. Thus, in deciding whether the petitioner s claim before PIPDIC could be considered as compliance of the condition under Section 104, I take succour from the following facts : (i) Section 104 was itself was enacted as a beneficial provision method. Legislature intended, in principle, that there shall be no levy of service tax in respect of services relating to grant of long term lease in excess of 30 years. (ii) Admittedly, the transaction qua the petitioner and PIPDIC falls squarely within the factual and legal matrices envisaged under Section 104 and on this score, there is no dispute. (iii) Also admittedly, the request of the petitioner for refund before PIPDIC was made on 6-3-2017 even before the Presidential assent has been received, which is on 31-3-2017. Thus, the petitioner cannot be faulted for lethargy, neg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d CGST reported in 2019(29) GSTL 296 (MP, wherein the Hon'ble High Court upheld the rejection of the refund claim on time bar ground. The said decision has been upheld by the Hon'ble Supreme Court also. However, I find that in that case there was a fault on the part of the Appellant and the delay in filing the refund claim was due to the fault of the Appellant. The relevant observation of the Hon ble High Court for the question framed by them is reproduced below: 14 . The appellant has proposed the following substantial questions of law :- (A) ------ ---- ---- ----- ---- ------ ------ (B) Whether on facts and in the circumstances of the case and in law, the Tribunal was justified in rejecting appellant s refund claim as time barred without appreciating the fact that delay in filing the refund claim was beyond the control of the appellant inasmuch as the construction service covered in the refund claim is actually exempt of service tax was itself disputed by the authorities as the same was under investigation? 15.----- ----- ----- ----- ------ ------ 16 . As regard to substantial question of law at B , the said question in given facts of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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