TMI Blog2018 (8) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 103 of the Finance Act, 2014 provided that the assessee shall be entitled to the relief of all such service tax which has been collected but which would not have been so collected on subsection (1) within force at all material times and it further provided that notwithstanding anything contained in the said Chapter, an application for claim of refund of service tax shall be made within a period of six months from the date on which the Finance Bill, 2016 receives the assent of Hon ble The President. It cannot be disputed that but for section 103 of the Finance Act, 2014 and the exemption being granted retrospectively, the petitioner could not have as a matter of right claimed such exemption and/or even consequently the refund of the tax paid. As such the Union Government was not under any obligation to provide the exemption retrospectively and that too with refund of the tax already paid. By way of policy decision which was culminated into section 103 of the Finance Act, 2014, such an exemption was provided retrospectively and the refund was provided, however subject to subsection (3) of section 103 of the Finance Act, 2014. Even the prayer of the petitioners to direct t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice tax shall be made within a period of six months from the date on which the certificate from the Ministry of Civil Aviation or, as the case may be, the Ministry of Shipping in the Government of India certifying that the contract had been entered into before the 1st day of March, 2015, is received. ( c) This Hon ble Court be pleased to issue a Writ of mandamus or writ in the nature of Mandamus or any other appropriate Writ, order or direction under Article 226 of the Constitution of India directing Respondents to compute the six months period within which the refund claim was to be filed in terms of Section 103 of the Finance Act, 1994, from the date the requisite certificate was issued by the Ministry of Shipping. ( d) This Hon ble Court be pleased to issue a Writ of mandamus or writ in the nature of Mandamus or any other appropriate Writ, order or direction under Article 226 of the Constitution of India, to exclude the period from the date of application made to the Ministry of Shipping till the date of grant of the requisite certificate by the Ministry of Shipping, while computing the 6 months period in terms of section 103 of the Finance Act, 1994; Adinterim r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red into prior to 01.03.2015, and on which appropriate stamp duty, if applicable had been paid before 01.03.2015 (ii) The Ministry of Civil Aviation / Ministry of Shipping in the Government of India certified that the contract had been entered into prior to 01.03.2015 (iii) An application for the claim of refund of service tax should have been made within six months from the date on which the Finance Bill, 2016 received the assent of the President. [2.3] That the Finance Bill, 2016 received the assent of the Hon ble President on 14.05.2016. Accordingly, in view of the amendment, the exemption to construction, erection, commissioning or installation of original works pertaining to an airport and port which had been withdrawn from 01.04.2015 was restored in respect of the period from 01.04.2015 to 29.02.2016. At this stage it is required to be noted that in respect of the period after 01.03.2016, by Notification No. 9/2016ST dated 01.03.2016, exemption was restored in respect of the services of construction of airport by insertion of section 14A in Notification 25/2012ST dated 20.06.2012. [2.4] It is the case on behalf of the petitioner that on 10.03.2016, it applied to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Tribunal has materially erred in allowing the appeal and quashing and setting aside the OIA and consequently confirming the OIO rejecting the refund claim. [3.1] It is vehemently submitted by Shri Joshi, learned Counsel appearing on behalf of the petitioners that the learned Tribunal has not properly appreciated the fact that infact the petitioner submitted the application for refund within a period of six months from the date of receipt of required certificate from Ministry of Shipping, which the petitioners received by communication dated 22.11.2016. It is submitted that immediately on receipt of the required certificate from the Ministry of Shipping, the petitioners submitted the claim for refund on 28.11.2016. It is submitted that therefore the claim for refund cannot be rejected on the ground that same was filed beyond the period prescribed under Section 103 of the Finance Act, 1994. [3.2] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of the petitioners that the learned Tribunal has not properly appreciated, which as such was appreciated by the Commissioner (Appeals) that in absence of any required certificate from the Ministry of Ship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax paid. It is submitted that object of the clause as provided in section 103(3) is to overcome the hurdle of litigation under Section 11B of the Central Excise Act, 1944 and not to create one. It is submitted that therefore the provisions of subsection (3) of Section 103 cannot be regarded as mandatory. [3.5] Shri Joshi, learned Counsel appearing on behalf of the petitioners has further submitted that even otherwise the petitioner cannot be made to suffer on account of the delay on the part of the authority / Ministry in issuing the required certificate. It is submitted that when the Ministry of Finance had subjected the refund to certificate being issued by the Ministry of Shipping, it was obligatory on the part of the Ministry to have issued the said certificate immediately upon an application for the same being made. It is submitted that it is settled law that an assessee cannot be made to suffer for the fault on the part of the departmental authorities. In support of his above submissions, Shri Joshi, learned Counsel appearing on behalf of the petitioners has heavily relied upon the decision of the Division Bench of this Court in the case of Cosmonaut Chemicals v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) of section 103 of the Finance Act, 1994, the same is rightly rejected by the learned Tribunal. Shri Desai, learned Counsel appearing on behalf of the Department has vehemently submitted that subsection (3) of section 103 of the Finance Act, 1994 cannot be said to be in anyway unreasonable and/or harsh and/or discriminatory as contended on behalf of the petitioner. It is submitted that as such during the period between 01.04.2015 till 28.02.2016 the service provided was subjected to the service tax as the exemption was withdrawn for the aforesaid period. However, thereafter, the policy decision was taken in form of section 103 of the Finance Act, 1994 by which the service in question was exempted retrospectively which otherwise the assessee could not have prayed as a matter of right. It is submitted that however the said policy decision and the refund provided under section 103 of the Finance Act, 1994 was subject to fulfillment of condition that the application for refund must be made within a period of six months from the date on which Hon ble The President gives the assent. It is submitted that therefore the right of refund conferred in favour of the petitioner / assessee was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t gives assent. It is submitted that submitting an application for refund was not depending upon the requisite certificate from the Ministry of Shipping and Ministry of Civil Aviation. It is submitted that there is a distinction between the entitlement of the refund and submitting the application for refund. It is submitted that like the provision under Section 11B of the Central Excise Act, 1944 that the application for refund shall be accompanied by such documentary evidence, there is no provision in section 103 of the Finance Act, 1994 that the refund claimed must be accompanied with the certificate issued by the Ministry. It is submitted that therefore the decision of the Division Bench of this Court in the case of Cosmonaut Chemicals (Supra) shall not be applicable with respect to the refund claim under Section 103 of the Finance Act, 1994. [4.2] It is further submitted by Shri Desai, learned Counsel appearing on behalf of the Department that even otherwise on facts also the learned Tribunal has not committed any error in allowing the appeal and confirming the OIO rejecting the refund claim. It is submitted that the petitioner submitted only certain documents alongwith the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The main ground on which the first Authority as well as the learned CESTAT has rejected the claim of the petitioner is that the application submitted by the petitioner for refund of claim was beyond the period of six months prescribed in subsection (3) of Section 103 of the Finance Act, 1994. Therefore, the petitioner has prayed for other reliefs viz. (i) to declare section 103(3) of the Finance Act, 1994 as arbitrary, unconstitutional and ultra vires to Article 14 of the Constitution of India; (ii) to read down subsection (3) of Section 103 of the Finance Act, 2016 as mentioned in para 30(b) of the petition; (iii) to direct the respondents to compute six months period within which the refund claim was to be filed in terms of section 103 of the Finance Act, 1994, from the date the requisite certificate was issued by the Ministry of Shipping; (iv) directing the respondents to exclude the period from the date of application made to the Ministry of Shipping till the date of grant of requisite certificate by the Ministry of Shipping, while computing six months period in terms of section 103 of the Finance Act, 1994. [6.1] While considering the aforesaid reliefs and the issue wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the assessee shall be entitled to the relief of all such service tax which has been collected but which would not have been so collected on subsection (1) within force at all material times and it further provided that notwithstanding anything contained in the said Chapter, an application for claim of refund of service tax shall be made within a period of six months from the date on which the Finance Bill, 2016 receives the assent of Hon ble The President. It is required to be noted that the assent of Hon ble The President was received on 14.05.2016 and therefore, the application for claim of refund of the service tax was required to be made within a period of six months from 14.05.2016. In the present case admittedly the petitioner submitted the application for claim of refund of the service tax on 28.11.2016 i.e. much after the completion of six months period from 14.05.2016. Thus, from the aforesaid and considering section 103 of the Finance Act, 2014, it can be seen that a policy decision was taken by the Government to restore exemption retrospectively and allowing the refund of the service tax paid during the period between 01.04.2015 to 29.02.2016, provided the refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption is a privilege. In fiscal matters the concession granted by the State Government to the beneficiaries cannot confer upon them legally enforceable right against the Government to grant a concession, except to enjoy the benefits of the concession during the period of its grant. Enjoyment is defeasible one and can be taken away in exercise of very power under which such exemption was granted. This Court observed : 25. An exemption is by definition a freedom from an obligation which the exemptee is otherwise liable to discharge. It is a privilege granting an advantage not available to others. An exemption granted under a statutory provision in a fiscal statute has been held to be a concession granted by the State Government so that the beneficiaries of such concession are not required to pay the tax or duty they are otherwise liable to pay under such statute. The recipient of a concession has no legally enforceable right against the Government to grant of a concession except to enjoy the benefits of the concession during the period of its grant. This right to enjoy is a defeasible one in the sense that it may be taken away in exercise of the very power under which the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m was to be filed in terms of section 103 of the Finance Act, 1994, from the date the requisite certificate was issued by Ministry of Shipping also cannot be granted in exercise of powers under Article 226 of the Constitution of India. No directions can be issued in exercise of powers under Article 226 which shall be contrary to the statutory provision. Grant of such relief in exercise of powers under Article 226 of the Constitution of India would be contrary to the statutory provision. [6.7] Now, so far as the main submission on behalf of the petitioner that as the Ministry of Shipping took considerably long time in issuing the required certificate but for such certificate the refund was not allowable and the said certificate was received only on 22.11.2016 and immediately on 28.11.2016 the refund claim was submitted and therefore, for the delay on the part of the Ministry the petitioner may not be made to suffer and the submission on behalf of the petitioner that earlier the petitioner did not make an application and/or could not have made the application without the requisite certificate from the Ministry of Shipping and for that the reliance placed upon the decision of the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (3) of Section 103 the words the refund application shall be accompanied by the certificate issued by the Ministry of Shipping is missing. Therefore, the aforesaid decision shall not be applicable with respect to the refund application claiming the refund under Section 103 of the Finance Act, 2014. Section 11B of the Central Excise Act, 1944 as such claiming the refund shall not be applicable in stricto senso as the petitioner is claiming the refund under Section 103 of the Finance Act, 2014 and the right to claim the refund is accrued under Section 103 of the Finance Act, 2014. Therefore, the conditions prescribed in section 103 of the Finance Act, 2014 shall be applicable more particularly subsection (3) of Section 103 of the Finance Act, 2014. But for section 103 of the Finance Act, 2014, the petitioner could not have claimed the refund and therefore, the petitioner has to comply with all the conditions mentioned in section 103 of the Finance Act, 2014. The time limit is provided under the Statute. Looking to the specific provision of section 103 of the Finance Act, 2014 more particularly the specific provision contained in subsection (3) of section 103, even there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
