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2016 (7) TMI 1151 - CESTAT HYDERABAD

2016 (7) TMI 1151 - CESTAT HYDERABAD - 2016 (45) S.T.R. 217 (Tri. - Hyd.) - Refund - period of limitation - retrospective exemption on all taxable services relating to Transmission and Distribution of Electricity provided by a service provider to a service receiver during the period 26.02.2010 to 21.06.2010 - refund claim is filed on 11.07.2011 which is after lapse of six months from issue of notification and hence is hit by time bar. - Held that:- We find that both the apparently conflictin .....

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Section 11 (C) will stand eclipsed by the general provision of Section 11 (B). The general provision of S 11 B 5 (ec) will then take precedence over the special provision in S 11 C ibid. In such a case, by implication the refund claimant will legally become entitled to file the claim within a time limit of one year from the date of judgment, decree, order or direction of appellate authority, Tribunal or Court in view of clause (ec) of explanation B of S 11 B (5) ibid - The limitation can th .....

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30567/2016 - Dated:- 29-6-2016 - Ms. Sulekha Beevi, C.S., Member (Judicial) and Sh. Madhu Mohan Damodhar, Member (Technical) Shri R. Raghavendra, Authorised Representative for the Appellant. Shri Prabhu Das Puli, Joint Commissioner (AR) for the Respondent ORDER The facts of the case are that the appellant filed a refund claim for ₹ 61,81,771/- on 11.07.2011 being the amount paid by them towards service tax under ECIS for the period 2009-10 and 2010-11; the refund was claimed under notifica .....

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claimed as refund by them: Amount (Rs.) Paid on 1,98,424 1,10,305 46,425 29.09.2009 53,806 05.12.2009 1,08,689 04.01.2010 3,056 26,132 01.03.2010 1,31,934 29.03.2010 (Challan produced at adjudication stage) 5,00,000 08.01.2011 5,00,000 17.01.2011 Total : 16,81,771 2. The refund sanctioning authority held that the refund claim is filed on 11.07.2011 which is after lapse of six months from issue of notification and hence is hit by time bar. Another ground for denying the refund was that the Notif .....

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tion, they contend that the limitation will only start from the date of favorable judgment as per Section 11B (5)(B)(ec). Regarding the second ground of rejection, that they were not eligible for notification no. 45/2010 ST; they contend that this issue is settled in a number of decisions. 4. The Learned AR, reiterated the findings in the impugned order and submitted that the refund is hit by limitation. He contended that Section 11C clearly lays down that the claim has to be filed within six mo .....

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al ambit of notification nos.11/2010-ST dated 27.02.2010 and 32/2010-ST dated 22.06.2010. The relevant portions of these notifications are reproduced below: In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the Finance Act), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service provided to any person, by any other person for transmissi .....

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person by whatever name called, authorized to distribute power under the Electricity Act, 2003 (36 of 2003), for distribution of electricity, from the whole of service tax leviable thereon under section 66 of the said Finance Act. 7. The aforesaid dispute resulted in a number of show cause notices demanding service tax on such services provided related to Distribution/Transmission of electricity. We find that show cause notice O.R 35/2011-ADJN. ST(Commissioner) (HQ POR No.01/2011-STATE 1) dated .....

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evant portion of which is reproduced below: Whereas, as Central Government is satisfied that a practice was generally prevalent regarding levy of service (including non-levy thereof), under section 66 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the Finance Act), on all taxable services relating to transmission and distribution of electricity provided by a person (hereinafter called the service provider) to any other person (hereinafter called 'the service receiver') .....

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e said Finance Act, the Central Government hereby directs that the service tax payable on said taxable services relating to transmission and distribution of electricity provided by the service provider to the service receiver, which was not being levied in accordance with the said practice, shall not be required to be paid in respect of the said taxable services relating to transmission and distribution of electricity during the aforesaid period". 9. It is thus seen that the subsequent noti .....

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uch as the appellant, in a number of cases. In fact relying upon such case laws, in the appellants own appeal, this Bench has set aside the aforesaid demand made against them by denial of notification No. 45/2010-ST vide Final Order No. A/30489/2016 dated 23.05.2016. The relevant portion of the order is reproduced below: The appellant is registered with the Service Tax Department. On verification of records it emerged that the appellant had entered into contract agreements with Power Distributio .....

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erty Services, however, have neither disclosed these facts to the Department nor discharged appropriate service tax liability thereon. 2. In adjudication proceedings, service tax demand of ₹ 60, 68,455/- was confirmed on services rendered under the category of ECI Services. Demand of ₹ 4,91,145/- was confirmed on services rendered under the category of Renting of Immovable Property. Hence this appeal. 3. The learned Cousel appearing for the appellant Shri R. Raghvendra Rao submitted .....

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ises Vs CCE, Hyderabad-III [2015-TIOL-459-CESTAT-BANG] 4. We find that the appeal before us is more than amply covered by the above judgments. The relevant portion of the judgment in Elmech Enterprises case is reproduced below: 5. The Notification No. 45/2010-ST provides exemption to all taxable services relating to transmission and distribution of electricity by a person to another person during the relevant period covered by the proceedings. It is not limited only to taxable service of transmi .....

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the dictum laid in the above judgments we find that the demand raised under ECIS is unsustainable and requires to be set aside which we hereby do. We do not interfere with the demand in regard to renting of Immovable Property. The appeal partly allowed with consequential reliefs, if any. 11 . In the circumstances, we 'therefore find that the main issue per se was in agitation/subjudice in respect of this appellant at least till the date of Tribunal's afore cited Final Order viz; 23.05.20 .....

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(ec) of Explanation (B) of sub section (5) of Section 11 (B) ibid read with subsection (1) thereof, in case where a duty becomes refundable as a consequence of judgment , decree, order or direction of appellate authority, Appellate Tribunal or any court, the refund claim can be made before the expiry of one year from the date of such judgment decree or direction. The statutory interpretation in such a situation, as distilled from settled law, is that when there are in an enactment two provisions .....

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e more general one as to exclude the more specific". This principle is expressed in the maxims "Generalia specialibus non derogent" and "Generalia specalia derogent" which means that general things will not derogate from the special provisions and is invoked to determine the scope of a general enactment with reference to a special enactment which precedes it. 12. We find that both the apparently conflicting provisions in section 11(B) vis-a-vis 11 (C) ibid, with regard t .....

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