TMI Blog2018 (9) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... se that Explanation (B) defines “relevant date”. Though this date has reference to the calculation of limitation period for the purposes of seeking refund of the duty under the aforesaid provision. However, clause (e) while stating the “relevant date” clarifies that in case of a person, other than the manufacturer, the date of purchase of goods by other person would be the relevant date. This itself indicates that the person can be other than the manufacturer and Explanation (B) caters to such other person. Thus, the appellant have locus standi to file refund claim in this case. Disclaimer certificate - Held that:- The appellant have placed on record disclaimer certificate dt.30.1.2018 from the Housing Board Haryana in respect of thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 before Hon ble Punjab Haryana High Court where the High Court vide Order dated 11.08.2016 held that as the HBH is government authority having been set up under a State Act and is wholly controlled by the State Government, the services provided to it were exempted. Consequent to the judgment of Hon ble High Court, HBH refunded them the sum of ₹ 61,80,073/- in January, 2017. However, the HBH did not refund them the amount of ₹ 25,60,293/- being deposit with the Service Tax Department and informed the appellants accordingly. The appellants vide their letter No.2016-17/ST/001 dated 24.01.2017 filed the refund claim of ₹ 25,60,293/- with the office of Assistant/Deputy Commissioner of Service Tax, Panchkula. The refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n paid by the Housing Board Haryana and not by the appellant directly. It was held that the ultimate customer has to bear the burden of service tax hence it is to be examined whether the incidence of service tax paid by the Housing Board Haryana has to be passed on to the customer or not which can be done only when the refund claim is filed by the Housing Board Haryana and not by the present appellant. On these grounds, the appeal was rejected. Aggrieved from the same, the appellant have filed this appeal. 3. Ld. CA for the appellant submits that after 1.7.2012 certain contracts were awarded to them by Housing Board Haryana, who deducted 50% of the applicable rate under reverse charge mechanism on the running bills of the contractor and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating authority. Ld. CA also placed on record page 151 of Central Excise Manual wherein it is specified that refund can be filed by the assessee or even a person, who has borne the duty incidence. 4. Ld. AR reiterated the findings in the impugned order of the Commissioner (Appeals). 5. Heard both sides and perused the record. 6. I find that the first issue is whether the appellant have locus standi to file refund claim or not. I find that this issue is already settled by the judgment of the Hon ble Supreme Court in the case of Oswal Chemicals Fertilizers Ltd. (supra), wherein the Hon ble Supreme Court has held as below:- 5.Insofar as dismissing the application on the ground that the appellant did not have locus standi, we f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Though the duty under Section 11B of the Act is payable by the manufacturer, a manufacturer would generally pass on the burden of the excise duty to the buyer or it may be some other person. It is for this reason, a person who is ultimately aggrieved with the payment of the said duty and challenges the order successfully can seek the refund. This becomes apparent from the reading of clause (e) to Explanation (B) appended to the aforesaid provision which is as under : Explanation. - For the purposes of this section, - ............. . (B) relevant date means, - . . in the case of a person, other than the manufacturer, the (e) date of purchase of the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the refund of the duty. 7. In view of the above judgment of Hon ble Supreme Court, I hold that the appellant have locus standi to file refund claim in this case. I also find that the department has entertained the refund claim of another similarly placed contractor, as is evident from the Order-in-Appeal No.Appl/PKL/ST/32/2017-18 dt.22.2.2018 of the Commissioner (Appeals) in the case of Satish Kumar Gupta, Contractor. Hence, the rejection of plea of appellant on this ground by Commissioner (Appeals) is untenable. 8. The second issue pertains to merits of the case where HBH has given the disclaimer certificate. I find that the appellant have placed on record disclaimer certificate dt.30.1.2018 from the Housing Board Haryana in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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