Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2023 (10) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (10) TMI 502 - AT - Service TaxRefund of Service Tax - time limitation - claim in accordance with Section 11B of the Central Excise Act, 1944 or not - HELD THAT:- The refund application was filed as early as in March i.e., 18.03.2011, sent by registered post and the Revenue now cannot dispute the same since, apparently, the same was returned for re-submission after pointing out mistakes in the said application. The appellant had thereafter vide letter dated 31.03.2011 re-submitted the refund claim. The Hon’ble Gujarat High Court in APAR INDUSTRIES (POLYMER DIVISION) VERSUS UNION OF INDIA [2015 (12) TMI 1255 - GUJARAT HIGH COURT] has held in the above case that the time-limitation under Section 11B is to be reckoned from the date of original application for refund, which is 18.03.2011 in the case on hand. Further, it has been held that when the petitioner re-presented such rebate applications in correct form, backed by necessary documents, the same should have been seen as a continuous attempt on part of the petitioner to seek rebate. Thus seen, it would relate back to the original filing of the rebate applications, though in wrong format. Admittedly, the date of the original refund claim is within one year as stipulated under Section 11B ibid. The Department has accepted the said decision of the Hon’ble Gujarat High Court vide Circular No. 1063/2/2018-CX dated 16.02.2018, by which act the said judgement of the Hon’ble Gujarat High Court has attained finality and so has the decision therein. The time-limitation for refund application under Section 11B in the case on hand is to be reckoned from the date of original filing of such application. Hence, the issue of time-bar does not arise in the case on hand and to this extent, therefore, the impugned order cannot sustain. Section 11B refers to ‘any person’ and admittedly, the appellant before us is the person who has borne the incidence of tax and hence, ‘any person’ appearing in the said section clearly covers the appellant as well. This is also for the reason that, as admitted by the builder, the builder had only remitted the tax portion paid by the appellant to the Department, and as admitted by his certificate, as having included the tax portion in the consideration received - the appellant was very much within her right to have claimed the impugned refund and further that she was also entitled for the same. If the construction is for the self-use of the builder, then perhaps there may not be any liability on its part to pay Service Tax, but still the Revenue consciously accepted such payment just to deny the refund to the appellant. Hence, the denial, as made by the adjudicating authority, which was subsequently upheld, is unsustainable for the reason that the same is without any basis, for which reason the impugned order is set aside. The appeal is allowed.
|