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2020 (4) TMI 308 - HC - Service TaxRefund claim - Period of limitation - SEZ unit - Distribution of input services / credit - Period to be computed from the date of original Invoice or from the date of ISD invoice - refund claims covered by Table-II of Form A-4 of Notification No. 12/2013-ST dated 01.07.2013 - applicability of mandatory time limit for filing refund as prescribed in clause (e) of the Para 3(III) of the Notification No.12/2013-ST dated 01.07.2013 issued by the Government of India, Ministry of Finance, Department of Revenue. Whether the Tribunal was right in holding that mandatory time limit to file refund claims prescribed in clause (e) of paragraph 30(III) of Notification No. 12/2013-ST dated 01.07.2013, issued by the Government of India, Ministry of Finance, Department of Revenue, is not applicable to the refund claims covered by Table-ll of Form A-4 of the said notification? - HELD THAT:- This question does not arise out of the impugned order, inasmuch as, the Tribunal, while finding the submission of the learned counsel for the respondent that, clause (e) does not apply to refund claims covered by Table-ll of Form A-4 of the said notification, to be convincing; has not dealt with this aspect in these proceedings as it did not find any infirmity in the adjudicating authority having granted refund by following the practice and precedence set by his predecessors. Whether the Tribunal was right in holding that the adjudicating authority has exercised discretion to allow filing of refund claim beyond one year by the respondent, when the adjudicating authority had not recorded any reasons to condone such delay? - HELD THAT:- In the absence of any facts coming on record, it is not clear, as to whether or not any previous order contains reasons for extending the period for filing refund claims - Be that as it may, considering the fact that the adjudicating authority was conscious about the fact that in case of refund claims falling under Table-II, some claims were filed beyond a period of one year from the date when the ISD made actual payment to the registered service provider, it cannot be said that the view adopted by the Tribunal is not a plausible view so as to give rise to a question of law, much less, a substantial question of law. Whether the Tribunal has the power or jurisdiction to condone the delay in filing the refund claim as per clause (e) of Para 3(lll) of Notification No. 12/2013-ST dated 01.07.2013, which is vested with the Assistant/Deputy Commissioner of Central Excise? - HELD THAT:- There is a provision for allowing further time on sufficient cause, which is found in the proviso to section 8(4) of the said Act. It was the case of the revenue that with the completion of the assessment the time limit for filing C forms expires. The appellate authority comes on the scene only after the assessment is over. Under the relevant statutory provisions, an assessing authority alone can allow further time. The appellate authority is different from an assessing authority. Therefore, the appellate authority cannot allow further time and receive C forms at the appellate stage, subsequent to the assessment - the court has held that whatever discretion is conferred on the assessing authority for purposes of assessment, must so be regarded, as a matter of statutory construction, to have been conferred on the appellate authority even without the concerned statutory provision expressly naming the appellate authority in that behalf. An appellate authority, engaged as it is in precisely the same task under the fiscal statute as that of the assessing authority must also be possessed of like powers as those of the assessing authority. Whether the Customs, Excise and Service Tax Tribunal was justified in holding that in case of ISD invoices, for all purposes, be it cenvat or refund, the ISD invoice is deemed to be taxpaying document, and hence, the date of that invoice has to be taken even for computing the one year stipulated in clause (e) of paragraph 3(III) of Notification No.12/2103-ST dated 1st July, 2013? - Whether the Customs, Excise and Service Tax Tribunal was justified in holding that no reasons are required to be assigned for extending the period for filing refund claims? - HELD THAT:- On a conjoint reading of rules 7 and 9 of the CC Rules, it emerges that the input service distributor has to distribute the CENVAT credit in respect of service tax paid on input service to its manufacturing units whether in the DTA or the SEZ; and in terms of rule 9 of the said rules, the concerned unit which in the present case is an SEZ unit, is entitled to take CENVAT credit on the basis of an invoice issued by the input service distributor under rule 4A of the Service Tax Rules. Therefore, an invoice issued by the input service distributor is proof of payment having been made to the service provider and can be said to be a taxpaying document. However, while such document is proof of payment of tax, the date which such document bears is not the date of actual payment of service tax as contemplated in clause (e) of paragraph 3(III) of Notification No.12/2013-ST dated 01.07.2013 - Clause (e) of paragraph 3(III) of Notification No. 12/2013-ST dated 01.07.2013, postulates that the claim for refund shall be filed within one year from the end of the month in which actual payment of service tax was made by such Developer or SEZ Unit to the registered service provider or such extended period as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may, shall permit. Customs, Excise and Service Tax Tribunal was not justified in holding that in case of ISD invoices, for all purposes, be it cenvat or refund, the ISD invoice is deemed to be taxpaying document, and hence, the date of that invoice has to be taken even for computing the one year stipulated in clause (e) of paragraph 3(III) of Notification No.12/2103-ST dated 1st July, 2013. It is further held that the Customs, Excise and Service Tax Tribunal was not justified in holding that no reasons are required to be assigned for extending the period for filing refund claims - Both the above substantial questions of law stand answered accordingly, in favour of the appellant and against the respondent. Appeal disposed off.
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