Home Case Index All Cases Service Tax Service Tax + HC Service Tax - 2018 (8) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (8) TMI 614 - GUJARAT HIGH COURTRefund claim of service tax on services which were exempted with retrospective effect - Illegal action of CPWD in adjusting security deposit of the petitioner - unjust enrichment - Held that:- In the execution of works contract for CPWD; as per the then prevailing law, the service tax was collected by the petitioner and deposited with the Government revenue. Subsequently, however, the law was amended by virtue of which, in relation to the construction carried out by the petitioner for CPWD, service tax was exempted with retrospective effect. It is undisputed position that such tax was not required to be paid. The amended provision also envisaged refund of service tax already paid, if application is filed within prescribed time - The appellant who had paid the excise duty to the manufacturer viz. M/s. Indian Oil Corporation Limited and BPCL in the instant case, had the necessary locus standi to file the application claiming the refund of the duty. In the present case, it was therefore upto the CPWD to apply for refund of the service tax which was paid as per the law prevailing at the relevant time, but which became refundable on account of retrospective amendment in the law. The CPWD instead of applying for refund, itself insisted that the petitioner must apply and when the petitioner’s application for refund was rejected by the Assistant Commissioner of Service Tax, Ajmer, CPWD found a novel way to recover the same from the petitioner by utilizing the petitioner’s security deposit, unpaid amounts of final bill and the petitioner’s running bills of other contracts. These are wholly impermissible means of recovery. There is no iota of doubt that this Court has territorial jurisdiction to examine the legality of the action of CPWD - The orders passed by the Assistant Commissioner of Central Excise & Service Tax, Ajmer of course have a territorial origination outside the State, however, these two actions and orders are inter-linked and cannot be separated one from the other for testing the legality. The proceedings are placed back before the Assistant Commissioner of Central Excise & Service Tax, Central Excise& Service Tax Division, Ajmer [Rajasthan]. It would be open for the CPWD to join in the said application as a co-applicant. If so done by 30th June 2018, the competent authority shall decide such application on merits. We also hold that not the petitioner, but the CPWD can pursue the refund claim. Petition disposed off.
|