TMI Blog2020 (5) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... STAT CHENNAI] where it was held that rejection of refund claim on the ground of time bar is unjustified - rejection of refund set aside - appeal allowed - decided in favor of appellant. - Service Tax Appeal No.40738 of 2019 - Final Order No. 41682/2019 - Dated:- 16-12-2019 - HON BLE MS. SULEKHA BEEVI. C.S., MEMBER (JUDICIAL) Shri G. Raghu, Advocate Shri S. Raghavendra B Hanjer, Advocate For the Appellant Shri L. Nandakumar, AC (AR) For the Respondent ORDER The brief facts of the case are that appellant filed refund claim for an amount of ₹ 14,36,000/- on 22.02.2018 claiming refund of the amount which was collected by the service provider SIPCOT (State Industries Promotion Corporation of Tamil Nadu Ltd., A Govt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of (1) Teknomec Vs CGST Chennai vide Final Order No.40927/2019 dt. 09.07.2019 (2) Satyam Auto Components Pvt. Ltd. Vs CGST Chennai vide Final Order No.41160 / 2019 dt. 01.10.2019. 3. Ld. A.R.Shri L. Nandakumar appeared for the respondent. He stressed that Section 104 specifically states that the refund has to be filed within 6 months from the date on which amendment receives assent of the President . Thus the appellant ought to have filed refund claim on or before 30.092017. The refund has been filed only on 22.02.2018 which is beyond the date and therefore the authorities below have rightly rejected the refund claim. 4. Heard both sides. 5. The said issue has been decided by the Tribunal in the aforecited Final Order No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on specifies that the refund of service tax shall be made within a period of six months from the date on which the Finance Bill, 2017 receives the assent of the President. The said bill received the assent of the President on 31.03.2017. Thus, the refund claim, ought to have been filed on or before 30.09.2017. The appellant has filed refund claim only on 16.11.2017. They have explained the reasons for the delay in filing the refund claim. The service tax on development charges was collected by SIPCOT, who is the service provider. Thus, SIPCOT has collected service tax from appellants and deposited 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the appellant has relied upon the decision of the Hon ble High Court of Bombay in the case of M/s. JSW Dharmatar Port Pvt. Ltd., (supra). In the said case, the issue was with regard to refund of the service tax paid in respect of construction works done for Ministry of Civil Aviation/Ministry of Shipping. There was a condition specified in the Section 103, that the service provider has to furnish the certificate from the concerned Ministry to get the refund of service tax. The Hon ble High Court held that delay in obtaining the certificate from the Ministry has been excluded for computing the period of limitation. The discussion made by the Hon ble High Court is relevant and noteworthy. 13. Sub-section (2) of Section 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who should make the application for refund. The service tax therein was paid directly by the service provider and, therefore, after obtaining certificates from the concerned Ministry, the application for refund can be made. In the present case, the service tax was paid by the appellants to the service provider [SIPCOT], who has deposited the same with the Central Government. Thus, it was indeed necessary for the appellant to approach SIPCOT to get necessary information as to whether they have deposited the tax and obtain documents from SIPCOT for filing the refund claims. The position is, therefore, almost analogous with the condition in section 103, which mandates producing a certificate from the concerned Ministry. 11. The Authorised R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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