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TMI Blog2024 (3) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... ODS AND SERVICE TAX AND CENTRAL EXCISE, DELHI [ 2023 (11) TMI 1078 - CESTAT NEW DELHI] and M/S JAI MATESHWAARI STEELS PVT LTD VERSUS COMMISSIONER, CGST- DEHRADUN [ 2022 (3) TMI 49 - CESTAT NEW DELHI] . The learned Advocate further submits that in the absence of any services, Appellant cannot be burdened with the service tax liability - The Appellant as a law abiding citizen, entered the same in their books of account and paid the applicable service tax on it after collecting it from the buyer. But when the buyer cancelled the said booking on which service tax has been paid and the Appellant returned the booking amount along with service tax collected, then where is the question of providing any service by the Appellant to that customer. The cancellation of booking coupled with the fact of refunding the booking amount along with service tax paid would mean as if no booking was made and if that is so, then there was no service at all. If there is no service then question of paying any tax on it does not arise and the Department can t keep it with them. The Appellant had collected service tax from the allottees and had duly deposited such service tax with the Revenue. Subsequently, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs.12,09,213/- by debiting its Cenvat credit ledger on 30.07.2015. That, subsequently the allottee through her letter dated 15.11.2017, expressed her inability to pay balance amount of the total sale consideration and service tax, and thus requested the Appellant to cancel the booking of the impugned unit i.e. Unit 1 (B) in the project, and to make refund of Rs.3,00,00,000/- without any deductions whatsoever. Accordingly, the Appellant refunded the said amount on 01.02.2018, vide NEFT to her. That, the allottee acknowledged receipt of the refund of Rs.3,00,00,000/- and gave a No Dues Certificate. That, since the transaction of sale/provisional allotment entered into with the impugned allottee was cancelled and the amount involved was repaid/refunded back to the allottee by the Appellant, henceforth Appellant filed the refund application in Form-R on 25.09.2018 for claiming the refund of Rs.12,09,213/- which was paid by it in the past by debiting its Cenvat credit ledger on 30.07.2015 in respect of the amount collected and refunded to the allottee. Show cause notice date 21.12.2018 was issued. The Appellant replied to the SCN. The learned Adjudicating Authority rejected the refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation under Clause (f) of Explanation (B) to Section 11B of the Act, even though reversal of Modvat credit was done in February/March 1995, since the mistake was discovered only in November, 1995 when the Public Notice clarifying the legal position came to the knowledge of the petitioner, the period of limitation for the purpose of refund application would commence from November, 1995 i.e. on discovery of mutual mistake of the parties. In the circumstances, we hold that provisions of Section 11B of the Act are attracted to the refund application filed by the Petitioner. On the question of limitation, our conclusion is that since the claim is based on discovery of mistake, the period of limitation would not commence from the date of reversal of Modvat credit, but from the date when the mistake committed mutually of wrong reversal of credit by the parties was discovered in November, 1995. The refund claim has therefore to be held to be within time. (emphasis supplied) That, it will not be out of place to submit that the Revenue being aggrieved by the said judgement of the Hon'ble Gujrat High Court, took it up to the Hon'ble Supreme Court in special leave petition, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication for refund of CENVAT credit had been filed at a point of time when the CGST Act had not been enacted, an appeal would lie before the Tribunal against an order passed on the application filed for refund of CENVAT credit. What has to be seen is whether an appeal can be filed before the Tribunal after the coming into force of the CGST Act against an order passed under sub-section (3) of section 142 of the CGST Act. In view of the specific provisions of sub-section (3) of section 142 of the CGST Act, every claim for refund after 01.07.2017 has to be disposed of in accordance with the provisions of the existing law i.e. Chapter V of the Finance Act and the Central Excise Act. This would mean that the appellate provisions would continue to remain the same. This position is also explicit from the provisions of sub-section (6)(b) of section 142 of the CGST Act, wherein it has been provided that every proceeding of appeal, review or reference relating to recovery of CENVAT credit initiated whether before, on or after the appointed day under the existing law shall be disposed of in accordance with the provisions of the existing law. 45. Section 174(2)(f) of the CGST Act also provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Larger Bench, this Tribunal exercises jurisdiction over issues of refund claims filed under Section 142 of the CGST Act, 2017. In the present matters, the refund applications had been filed under Section 11B of the Central Excise Act, 1944 read with Section 142(5) of the CGST Act, 2017. 11. At the outset, I observe that the two conditions, which are sacrosanct to any refund application, are that (i) such refund application ought to be filed within the prescribed period of limitation and (ii) the incidence of duty should not have been passed to any other person by the applicant. 12. I find that the aspect of limitation in the facts and circumstances of the present matters, has already been decided by this Tribunal in the following cases, whereby it was held that the time limit prescribed under Section 11B of the Central Excise Act, 1944 cannot be invoked to reject a refund claim filed under Section 142(5) of the CGST Act, 2017: a) Wave One Private Limited v. Commissioner [2023 (11) TMI 1078 - CESTAT New Delhi] b) Jai Mateshwaari Steels Pvt. Ltd. v. Commissioner, CGST Dehradun [2022 (3) TMI 49 - CESTAT New Delhi] Accordingly, I hold that the refund applications filed by the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollected except by authority of law. Since Service Tax, in issue, received by the concerned authority is not backed by any authority of law, the Department has no authority to retain the same. Buyer booked the flat with the Appellant and paid some consideration. The Appellant as a law abiding citizen, entered the same in their books of account and paid the applicable service tax on it after collecting it from the buyer. But when the buyer cancelled the said booking on which service tax has been paid and the Appellant returned the booking amount along with service tax collected, then where is the question of providing any service by the Appellant to that customer. The cancellation of booking coupled with the fact of refunding the booking amount along with service tax paid would mean as if no booking was made and if that is so, then there was no service at all. If there is no service then question of paying any tax on it does not arise and the Department can t keep it with them. No law authorises the Department to keep it as tax. The net effect is that now the amount, which earlier has been deposited as tax, is merely a deposit with the Department and the Department has to return it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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