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TMI Blog2025 (1) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... The Commissioner (Appeals) has, in the order impugned, observed that since section 102 of the Finance Act is a self contained provision for refund of any tax paid and it provides time limit of six months for filing the refund application, the Assistant Commissioner correctly rejected the refund claim as being barred by time. 4. Ms. Nikita Jaju, learned counsel appearing for the appellant has submitted that no doubt that section 102 of the Finance Act permitted the appellant to claim the refund, but such refund can be claimed by the appellant within a reasonable period of time and to support this contention, learned counsel placed reliance upon a decision of a learned Member of this Tribunal in M/s Aadhar Stumbh Township Pvt. Ltd. [Service Tax Appeal No. 50046 of 2020 decided on 08.06.2022] Learned counsel also placed reliance upon the decision of the Karnataka High Court in Commissioner of Central Excise (Appeals), Bangalore versus KVR Construction [2012 (26) S.T.R. 195 (Kar.)]. 5. Ms. Jaya Kumari, learned authorised representative appearing for the department, however, supported the impugned order and submitted that it is not open to the appellant to claim refund under sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a period of six months from the date on which the Finance Biil, 2016 receives the assent of the President." 8. A bare perusal of sub-section (1) of section 102 of the Finance Act shows that notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the period commencing from the 01.04.2015 to 29.02.2016, in respect of taxable services provided to the Government, a local authority or a Governmental authority in respect of certain matters enumerated therein under a contract entered into before 01.03.2015. Sub-section (2) of the section 102 provides that refund shall be made of all such service tax which has been collected but which would not have been so collected had sub-section (1) been in force at all material times. Sub-section (3), however, provides that notwithstanding anything contained in Chapter 5 of the Finance Act, an application for the claim of refund of service tax shall be made within a period of six months from the date on which the Finance Act, 2016 receives the assent of the President, which date is 14.05.2016. 9. The sole reason for rejecting the refund application is that the appellant did not file the application wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the department was not towards the tax as would be governed by the provisions of Section 11B. It was urged that even if it is then the period of limitation prescribed being one year and since notification for restoration of exemption was issued on 1-3-2016 and the appellant had filed the refund claim on 24-3-2017, the same should have been allowed. 12. The appeal was, however, dismissed on 28-9-2017 by Commissioner (Appeals), on the findings :- "7. To put the legal position in proper prospective, I may mention that initially the mega exemption notification No. 25/2012-S.T. granted exemption inter alia to certain activities undertaken for the government. The said notification was amended vide notification No. 6/2015-S.T., dated 1-3-2015 whereby the said exemption for the Govt. work was withdrawn. Later, vide notification No. 9/2016-S.T., dated 1-3-2016 the said exemption was restored. The notification No. 9/2016-S.T. is prospective in nature and it does not grant retrospective exemption to the activities undertaken prior to 1-3-2016 as wrongly contended by the appellant. The retrospective exemption was granted by the legislature by way of section 102 which was inserted vide th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 98) E.L.T. 583 (S.C.), wherein it was observed that the refund claim filed before departmental authorities are to be governed by the time limit provided under the statute and the general law of limitation invoked by various High Courts under their extraordinary jurisdiction is inapplicable to the cases where the refund obligations has been moved before the Revenue authorities." Xxxx 16. As regard to substantial question of law at 'B', the said question in given facts of present also does not arise for consideration. The appellant was under legal obligation to deposit the service tax in respect of the service rendered qua non-exempted service. The contentions that it was beyond the control of the appellant to deposit the service tax on exempted service is misconceived. Evidently, the Notification No. 12/2012 & 25/2012 ceased to exist w.e.f. 1-4-2015. The exemption was revived by notification dated 1-3-2016. But since it was prospective in effect, the appellant was not entitled for any exemption, which the appellant was aware of and with open mind and eyes deposited the service tax due with interest. It was only by virtue of subsequent legislation the notification was mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law as the Government of India extended exemption with retrospective effect vide notification no.9/2016-ST read with Section 102 introduced by Finance Act, 2016. Thus, the rejection of refund by Revenue is also hit by Article 265 of the Constitution of India. I further hold that no limitation is applicable for refund in the facts and circumstances of the present case, due to the amount lying with the Revenue having the nature of revenue deposit." 16. This decision of a learned Member is clearly against the terms of sub-section (3) section 102 of the Finance Act. As noted above, once the time limit of six months has been provided, it cannot be contended that merely because the character of the tax deposit would continue to be in the nature of the tax collected without authority of law and, therefore, no limitation can be prescribed for filing the refund application. The learned Member failed to take into consideration the terms of sub-section (3) of the section 102 while arriving at such a conclusion. 17. In fact, the Madhya Pradesh High Court in MDP Infra (India) also repelled the view taken by the learned Member. 18. We, therefore, have no hesitation in holding that the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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