2019 (7) TMI 573 - AT - Service Tax

Refund claim - works contract or not - services provided by them to Ghaziabad Development Authority - time limitation - HELD THAT - The deposit of dues was during the period 11-13 December 2010 the challan have clearly mentioned payment of duty under protest. It seems to be an uncalled behavior of any reasonable prudent person to withdraw the protest immediately on the next date of payment i.e. on 14/12/2010 unless there is a specific reasons to do so. The explanation offered by the appellant that they were directed to do so by the range authorities seems plausible explanation. Apart from fact that there is no evidence of receipt of the said letter in the office of the Superintendent or Assistant Commissioner the said letter has to be interpreted as being under coercion and pressure from the Revenue and not from free will of the appellant. As such the duty having been deposited under protest in the challans itself the refund claim cannot be held to be barred by limitation. The said aspect requires verification and examination by the Lower Authorities from the contracts entered between the two as also from the certificate issued by the Ghaziabad Development Authority read with definition of works contract - Appeal allowed by way of remand.

Summary

Issues involved:
1. Refund claim on service tax paid under protest.
2. Determination of whether services provided were works contract.
3. Bar of limitation on refund claim.

Analysis:
1. The appellant paid service tax under protest on construction services provided to Ghaziabad Development Authority during April 2005 to March 2007. Following a Supreme Court decision, they sought a refund, claiming the services were not taxable as works contract services. The Revenue initiated proceedings to deny the refund, citing the services were not works contract and the claim was time-barred.

2. The appellant presented works contracts and statements from Ghaziabad Development Authority to support their claim that the services were works contract. However, lower authorities found the evidence insufficient, stating the contracts were not indivisible. The appellant argued they had provided specific works contracts and certificates from the Authority, but the authorities disagreed.

3. Regarding the limitation issue, the Revenue contended that a letter from the appellant withdrawing the protest against the duty payment indicated the refund claim filed in 2016 was beyond the limitation period. The appellant explained that they were pressured by range authorities to withdraw the protest, and the letter was not accepted by the Revenue office. The Tribunal found the Revenue failed to prove the letter was actually filed and concluded that the duty payment under protest prevented the refund claim from being time-barred.

4. The Tribunal ruled that the refund claims could proceed if the services provided to Ghaziabad Development Authority were categorized as works contract. To verify this, the matter was remanded to the Original Adjudicating Authority for further examination of the contracts and certificates between the parties. The appellant was granted an opportunity to present their case for consideration.