TMI Blog2019 (2) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... , as would give rise for the proposed substantial question. Rejection of refund on the ground of time limitation - Held that:- There was thus no ambiguity nor any dispute as would have prevented the appellant from seeking refund within the period of limitation. On these given facts the substantial question also does not arise for consideration. Whether service tax paid mistakenly under construction service although actually exempt, is payment made without authority of law? - Held that:- The contention that the service tax was paid mistakenly is also not borne out from the facts - the question do not arise for consideration. As no substantial question of law arises for consideration, the appeal stands dismissed. - C.E.A. No. 123/2018 - - - Dated:- 14-1-2019 - Sanjay Yadav And Vivek Agarwal JJ. For the Appellant : Shri Gautam Prasad Sharma, learned counsel with Ms. Smrati Sharma, learned counsel For the Respondent : Shri Praveen Surange, learned counsel ORDER This appeal under Section 35G(1) of the Central Excise Act, 1944 is directed against the final order No. A/51822/2018-SM(BR) dated 14/05/2018 passed by the Customs, Excise and Service Tax Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the services provided under a contract which has been entered into prior to 01/03/2015 and whereon appropriate stamp duty, where applicable, has been paid prior to that date. The exemption was restored till 31/03/2020. However, as the effect of exemption vide executive order was prospective; the legislature, vide Finance Bill 2016 restored the exemption from retrospective effect by incorporating Section 102 as under:- 102. Special provision for exemption in certain cases relating to construction of Government buildings.- (1) Notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the period commencing from the 1st day of April, 2015 and ending with the 29th day of February, 2016 (both days inclusive), in respect of taxable services provided to the Government, a local authority or a Governmental authority, by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of (a) a civil structure or any other original works meant predominantly for use other than for commerce, industry or any other business or profession; (b) a structure meant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 12 B) and 'goods', shall mean 'Service' whenever they appear Under the Section of Central Excise Act, 1944 and circular/ Clarification, issued in this regard, which will be quoted referred or discussed in this Show Cause Notice. Further, the word 'Act' appearing in Section 12B of the Central Excise Act, 1944 shall mean 'Finance Act, 1944', and the word 'buyer' shall mean 'ultimate buyer of goods which are manufactured using taxable services'. 2(b) Sub Section (I) Section 11B of the Central Excise Act, 1944 provides that any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section-12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered into prior to 01.03.2015 and on which appropriate stamp duty, where applicable had been paid prior to that date. The services provided during the period from 01.04.2015 to 29.02.2016 under such contracts are also exempted from service tax, even if service is provided after 01.04.2015. If service tax was paid, refund has to be granted. The noticee has complied all the terms and conditions as stipulated in the Notification. Noticee has paid the service tax on the aforesaid tender/ work order and because of withdrawn of exemption by the government w.e.f. 01.03.2015 there was delay in payment of service tax and the noticee has paid the interest of ₹ 57716/- and has applied for refund of the said amount of service tax with interest. And that the notification for restoration of exemption was issued in the month of March 2016 i.e. on 01.03.2016 and the noticee has filed the refund claim on 24.03.2017 within a period of one year from the month in which the exemption notification has been restored. It was further stated in reply that there was ambiguity in the exemption and the refund, the noticee was not aware hence noticee most humbly and respectfully requested that kindly c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buildings.- (1) Notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the period commencing from the 1st day of April, 2015 and ending with the 29th day of February, 2016 (both days inclusive), in respect of taxable services provided to the Government, a local authority or a Governmental authority, by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of (a) a civil structure or any other original works meant predominantly for use other than for commerce, industry or any other business or profession; (b) a structure meant predominantly for use as (i) an educational establishment; (ii) a clinical establishment; or (iii) an art or cultural establishment; (c) a residential complex predominantly meant for self-use or for the use of their employees or other persons specified in Explanation 1 to clause (44) of section 65B of the said Act, under a contract entered into before the 1st day of March, 2015 and on which appropriate stamp duty, where applicable, had been paid before that date. (2) Refund shall be made of all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o legislate or to travel beyond the statutory limitations provided by the legislature. Similarly, neither the Tribunal has such powers to go beyond the provisions of the Act. The issue is well settled. Reference can be made to Hon ble Supreme Court decision in the case of Porcelain Electrical Mfg. Co. vs. CCE, New Delhi 1998 (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 extra-ordinary jurisdiction is inapplicable to the cases where the refund obligations has been moved before the Revenue authorities. The appellant has proposed the following substantial questions of law:- (A) Whether on facts and in the circumstances of the case and in law, an amount paid under the mistaken belief that the service is liable to service tax when the same is actually exempt, be considered as service tax paid? (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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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