9911796707
TMI Blog2019 (7) TMI 1416X X X X Extracts X X X X X X X X Extracts X X X X ..... eld by Commissioner (Appeals) vide the order impugned in this appeal. 2. On behalf of the appellant, the learned counsel Shri S. Viswanathan appeared and argued the matter. He submitted that as per Section 104(1) of Finance Act, 2017, no service tax is leviable on one-time upfront amount [premium salami, cost, price, development charges or by whatever name called] in respect of taxable services provided or agreed to be provided by a State Government Industrial Development Corporation or Undertaking or Industrial Units by way of grant of long term lease of 30 years or more of industrial plots, for the period commencing from 01.06.2007 to 21.09.2016. 3. Section 104(2) provided that refund has to be made of all the service taxes which has been collected. The appellants had availed the services of SIPCOT, which is a State Government Public Sector Undertaking and had paid development charges, for which, SIPCOT had collected the service tax. After introduction of retrospective exemption of service tax on the development charges as stated in section 104 (1), SIPCOT issued letter, dated 27.10.2017 to the appellant informing the appellant that they can apply for refund of the service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T.437 (S.C.), was also relied. In the said case, the refund of sales tax was rejected for the reason that the assessee therein had not obtained prior permission for adjustment of the eligible refund. After considering the facts of the case, the Hon'ble Supreme Court held that the said permission was only procedural in nature and, therefore, the refund/adjustment could not be denied. 3.2 He, therefore, prayed that the limitation and start from the date when SIPCOT confirmed the appellant to apply for the refund directly. Computed from this date, the refund application is well within time. 4. The learned Authorised Representative Shri L. Nandakumar, AC (AR) supported the findings in the impugned order. He lay much stress that Section 104 has specifically stated that the refund has to be filed within six months from the date on which the amendment receives the assent of the President. Thus, the appellants ought to have filed the refund on or before 30.09.2017. The refund is filed on 16.11.2017 being beyond this date and therefore has been rightly rejected by the authorities below. He relied upon the decision in M/s. Singh Enterprises Vs Commissioner of Central Excise, Jamshedp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posited the same with the Government. The appellant though eligible to claim refund of service tax paid by them would be able to file refund claim only if they produce sufficient documents to show that SIPCOT has deposited the service tax with the government. In case the service tax is not deposited with the government and retained by SIPCOT, it would be a situation of only returning the service tax by SIPCOT to the appellant. In such circumstances, there would be no question of filing a refund claim. Thus only after getting information from SIPCOT that SIPCOT has have deposited the service tax with the government and also getting details of such deposit in the nature of tax paid challan, can the appellant file the refund. Thus, it was essential for the appellant to get information from SIPCOT as to the eligibility of the refund. They also had to obtain the necessary documents in the nature of service tax paid challan of SIPCOT as well as the certificate issued by SIPCOT stating that they have not claimed any refund. 8. It has to be noted that Section 104 does not identify as to who can make the refund application. If it had mentioned that service provider could make the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time envisaged under the section. In other words, if the concerned Ministry consumes substantial time in issuing certificate, the assessee cannot be non-suited on the ground that the refund application was not filed within the period of limitation. Any other view would expose this provision to the vice of arbitrariness. Thus read, we need not hold the provision unconstitutional. Reading down a statutory provision in order to save it from the vice of unconstitutionality, is a well know interpretative technique often times employed by the Court. Even otherwise, the interpretation that we have adopted is reasonable. No person can be expected to perform a task beyond his control. On one hand, the statute requires the certificate of the concerned Ministry before exemption from duty can be claimed, at the same time, the statute mandates that the refund application must be made within a certain time frame. We are, therefore, of the opinion that the time consumed by the ministry in processing and granting certificate, as referred to in sub-section (1) of Section 103, must be ignored for the purpose of computing the limitation for making refund application under sub-section (3) of Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
