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2016 (6) TMI 158 - CESTAT NEW DELHI

2016 (6) TMI 158 - CESTAT NEW DELHI - 2016 (44) S.T.R. 120 (Tri. - Del.) - Eligibility of refund claim - payment of service under protest - rejection of refund for the period 01/4/2006 to 23/4/2007 as barred by limitation and for the period post 24/4/2007, on account of non-submission of documentary evidence indicating that refund claim was related to payment of service tax for Construction of Residential Services - Service tax paid under protest - Held that:- the respondentís claim of refund of .....

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ed to pay in future awaiting the decision of the Honíble Allahabad High Court cannot be considered to be a refund application for the payments already made by them in the past. As such, we fully agree with the Revenue that the said letter cannot be considered to be a refund application. - It is well settled law that the Authorities working under the Act are bound by the provisions of the Act and no general limitation period can be adopted for grant of refund even in those cases where it was .....

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on 11B of the Central Excise Act, 1944 lays down the limitation period of one year from th4e relevant date for claim of refund to be made by an Assessee unless the same has been paid under protest. Accordingly, the refund of ₹ 72,21,075/- is barred by limitation as held by the Original Adjudicating Authority. - In respect of the remaining amount of ₹ 32,67,569/-, which falls within the limitation period, we note that the fact the service tax was deposited by the Assessee in relat .....

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ally remanded - Service Tax Appeal No. 1267 of 2011 - Final Order No. 51822/2016 - Dated:- 20-5-2016 - Ms. Archana Wadhwa, Member (Judicial) and Shri B. Ravichandran, Member (Technical) Shri K. Poddar, Authorized Representative (DR) - for the Appellant. Shri A.K. Batra, C.A. - for the Respondent ORDER Being aggrieved with the order passed by Commissioner (Appeals) Revenue has filed the present appeal. 2. After hearing both the sides, duly represented by Shri K. Poddar, learned DR for the Revenue .....

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24/4/2007 addressed to their Jurisdictional Range Superintendent of Service Tax Division, they submitted that they were paying service tax as a builder in view of the decision in the case of K. Raheja Development Corporation case. The Hon ble Allahabad High Court has turned down the said judgment in case of Assotech Reality Pvt. Ltd. vs State of U.P. As such the respondent is not liable to pay the service tax. However, they said that they are depositing the service tax in protest with the condit .....

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ed 25/2/2009 seeking refund of service tax of ₹ 1,04,88,644/- for the period April 2006 to September 2008/. Based upon the above claim of the Assessee, they were issued a show cause notice dated 17/6/2009 proposing to reject the refund claim of ₹ 72,21,075/- pertaining to the period 01/4/2006 to 23/4/2007 as barred by limitation. As regards the claim for the period post 24/4/2007, the refund was sought to be denied on the ground that they were registered with the Department under Con .....

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and the remaining amount of ₹ 32,67,569/- on account of non-submission of documentary evidence indicating that refund claim was related to payment of service tax for Construction of Residential Services. 6. Being aggrieved with the said order, the respondent filed an appeal before Commissioner (Appeals). The appellate Authority set aside the impugned order of the Original adjudicating Authority by observing that the said letter dated 24/7/2007 of the Assessee has to be held as filling of r .....

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was filed on 25/2/2009 and received by the Revenue on 26/2/2009. The period for which the refund is being sought by the Assessee is from April 2006 to September 2008. The Commissioner (Appeals) has interpreted the Assessee s letter dated 24/4/2007 as the refund application though the same was not in proper format. As such, we are of the view that the said letter dated 24/4/2007 gains importance to find out as to whether the same can be construed as refund application or not. For better apprecia .....

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judgment in Revised Civil Misc. Writ Petition No. 997 of 2006 decided on 23/03/2007 in case of Assotech Reality Pvt. Ltd. vs. State of U.P. Accordingly being a builder, we are not liable to pay the Service Tax. However, we are depositing the Service tax in protest with the condition that in case it is decided in favour of builder, the same would be refunded to us. It is further submitted that, it is not applicable to the case at hand in as much as this decision was rendered on the facts of its o .....

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f the property by these probable purchasers so that they may not be required to pay whole of the price at a time From the above, it cannot be inferred that the company is making construction for and on behalf of the probable customers. In view of the position explained above, you are requested to look into the matter and refund the service tax. Thanking you, Yours faithfully, Authorized Signatory 9. As is seen from above, the Assessee lodged its protest for payment of service tax making a refere .....

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st with liberty to claim the refund of the same in future, in case the disputed issue is settled in their favour. Further in the last line of the said letter, its stands stated by the Assessee that - In view of the position explained above, you are requested to look into the matter and refund the service tax . It is the said line of the letter which stands held as refund application by Commissioner (Appeals). 10. In view of the fact that the respondent continued to make deposit of service tax an .....

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idered to be a refund application. Though we fully agree that refund application need not be filed in a proper detailed format as prescribed under the law and there are decisions to the effect that even if such refund applications are made through a simple letter, the same should be treated as having been filed, so as to decide the same in the context of limitation. However, in the present case as already observed the respondent s claim of refund of service tax cannot be held to have been made b .....

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e Hon ble Allahabad High Court cannot be considered to be a refund application for the payments already made by them in the past. As such, we fully agree with the Revenue that the said letter cannot be considered to be a refund application. It is well settled law that the Authorities working under the Act are bound by the provisions of the Act and no general limitation period can be adopted for grant of refund even in those cases where it was not required to be paid. The provisions of Section 11 .....

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