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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 ..... 16-Service Tax dated 22nd September, 2016 by Ministry of Finance, the Appellant wrote a letter dated 02.12.2016 to KMDA claiming refund the service tax amount and to provide the details of service tax deposited by them to Service Tax Authority such as Challan No, Date etc. As the appellant paid the service tax to KMDA, they sought the refund from KMDA. KMDA vide their Memo No. 1039/KMDA/Estate/MM/EC-3/98, dated 16th March, 2017 issued the Challan evidencing payment of service tax by them to the department and advised the Appellant to seek the refund from Service Tax department as the tax collected by them was deposited in the Govt. Account by them. The Appellant then produced the same before the Service Tax Department, who advised them that Service Tax Refund claim was to be submitted only by the Assessee i.e. KMDA who had deposited the Service Tax and not by the Appellant. The Appellant once again wrote to KMDA vide letter no. ALPL/EST/K-11A/0954, dated 27th March, 2017 requesting them to claim the refund. KMDA, on receipt of the above letter kept silent for a long time and after a number of follow-ups finally informed the Appellant that they were not in a position to claim the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred by the impugned order. They submits that the delay in filing the refund was only due to inaction by the 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, they contended that they the delay was not due to their fault. 5. In this regard, the appellant cited the decision of Hon'ble Madras High Court in the case of Grand Technologies Versus Assistant Commissioner of GST& C. Ex., Puducherry Division III 2022 (67) G.S.T.L. 359 (Mad.), wherein on similar facts and circumstances, the refund was allowed by holding that the period of limitation prescribed in Section 104(3) is not applicable. By relying on the decision of Hon'ble Madras High Court, the Appellant prayed for allowing the refund. 6. The Ld. A.R submitted that the time limit for filing the refund claim in this case has been specifically provided in Section 104(3) itself. Hence, the claim filed beyond the time limit prescribed is liable for rejection. In this regard, he cited the decision of Hon'ble High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey 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, I hold that the delay in filing the refund application with the service tax department was not due to the fault of the Appellant. 8. I find that Hon'ble Madras High Court in the case of Grand Technologies Versus Assistant Commissioner of GST& C. Ex., Puducherry Division III 2022 (67) G.S.T.L. 359 (Mad.), allowed the refund claim on similar facts and circumstances by holding that the period of limitation prescribed in Section 104(3) is not applicable. I find that the decision of Hon'ble Madras High Court is squarely applicable in this case. The relevant portion of the decision is reproduced below: "23. The application for refund has been filed by the petitioner before the authorities only on 18-10-2018, which is, admittedly, beyond the period of six months as prescribed under Section 104 and to this extent, the impugned order cannot also be said to be erroneous. After all, one cannot expect the authorities to take an expansive view of the matter as urged by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Court, are inapplicable in this matter, since the error is not one of approaching the wrong officer within the same Department. 26. In this case, the petitioner has filed the claim before PIPDIC which is altogether a different entity. However, the mere fact that the entity approached was PIPDIC and not an officer of the Department does not, in the light of the reasoning adduced above, persuade me to take a view adverse to the petitioner as I believe that such a conclusion would be hyper-technical. 27. Thus, while reiterating yet again that the impugned order does take one plausible view, I set it aside, invoking, and in exercise of powers vested in this Court under Article 226 of the Constitution of India. The request of the petitioner shall be processed by the respondents and a decision taken on the merits of the claim for refund, within a period of four weeks from date of uploading of this order. 28. This Writ Petition stands allowed in the above terms. No costs". 9. The Ld. A.R. cited the decision of Hon'ble High Court of Madhya Pradesh in the case of MDP Infra(India) Pvt. Ltd. Vs Commissioner of Customs, C.Ex and CGST reported in 2019(29) GSTL 296 (MP, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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