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M/s Hyderabad Power Installations Pvt. Ltd. Versus CCE, C& ST, Hyderabad-II

2016 (7) TMI 1151 - CESTAT HYDERABAD

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 conflicting provisions in section 11(B) vis-a-vis 11 (C) ibid, with regard to time lim .....

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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 therefore start clicking only from the date of final judgment /decree/decision .....

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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 notification no. 45/2010-ST dated 20.07.2010. The said notification had been issued .....

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.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 Notification No. 45/2010-ST is not applicable to appellant since they are engaged .....

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rable 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 months of the date of notification. 5. We have heard both sides and gone throu .....

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d 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 transmission of electricity, from the whole of service tax leviable thereon under sect .....

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ctricity 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 21.01.2011 was inaddition to this very appellant assessee for non-payment of .....

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s 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'), and that all such services were liable to service tax under the said Finan .....

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ax 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 notification clearly stated that no service tax was required to be paid on all t .....

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aws, 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 Distribution/Transmission Companies which involved supply of material, erection and ins .....

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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 that the challenge in this appeal is now limited to the demand, interest, pe .....

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ppeal 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 transmission by the transmission company as observed by the learned original adjudi .....

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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; 23.05.2016. In the normal course, pursuant to issue of a notification under Section .....

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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 which cannot be reconciled, they should be so interpreted that if possible, .....

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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 to time limit prescribed to file refund claim are in fact harmonious with eac .....

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