TMI Blog2022 (6) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund claim of service tax paid under the existing law in respect of services not provided shall be disposed of under the existing law and has to be paid in cash. It states that such refund is subject to provisions of sub-section (2) of section 11B of Central Excise Act, 1944 only - In the present case, refund has been rejected on the ground of being filed beyond the period of one year as stipulated in sub-section (1) of section 11B. The contract having been annulled on 9.8.2018, it cannot be expected of the appellant to file the refund claim within a period of one year from the date (6.6.2017) of payment of service tax. Further, section 142(5) expressly states that the limitation provided in sub-section (1) of section 11B is not appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is time-barred cannot be justified - appeal allowed - decided in favor of appellant. - Service Tax Appeal No.40016 of 2022 - Final Order No. 40261/2022 - Dated:- 22-6-2022 - Ms. Sulekha Beevi C.S., Member (Judicial) Shri N. Viswanathan, Advocate for the Appellant Shri Vikas Jhajharia, AC (AR) for the Respondent ORDER Brief facts are that the appellant is engaged in the business of cord blood banking and is registered with the department. The business of the appellant was exempted in the pre-GST regime as per Mega Exemption Notification 25/2012-ST dated 20.6.2012. However, they had obtained registration for payment of service tax for discharging the liabilities by way of reverse charge mechanism. The appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arred. On appeal, the Commissioner (Appeals) upheld the same. Hence this appeal. 4. The learned counsel Shri N. Viswanathan appeared and argued for the appellant. He submitted that due to some technical and commercial reasons, the agreement entered with the German company was cancelled on 9.8.2018 and consequently the amount paid by the appellant was returned to them on 28.8.2018. The appellant had already paid the service tax on the said amount on 6.6.2017. As no service was provided by the German company, the appellant was not liable to pay any service tax under reverse charge mechanism. Thus, they are eligible for refund of the tax amount paid by them. 5. He argued that as per Rule 6(3) of the erstwhile Service Tax Rules, 1994, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not paid the service tax on the amount paid by them to the German company. So also there is no dispute that the contract was cancelled and the advance paid by them was returned by the foreign company to the appellant. Rule 6(3) of Service Tax Rules, 1994 reads as under:- (3) Where an assessee has issued an invoice, or received any payment, against a service to be provided which is not so provided by him either wholly or partially for any reason, [or where the amount of invoice is renegotiated due to deficient provision of service, or any terms contained in a contract], the assessee may take the credit of such excess service tax paid by him, if the assessee.- (a) has refunded the payment or part thereof, so received for the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Central Tax, Bangalore North reported in 2021 (52) GSTL 421 (Tri. Bang.) had occasion to consider a similar issue as to whether limitation would apply to the refund filed after the introduction of GST. In para 5.1 to 6, the Tribunal has observed as under:- 5.1 Further I find that it is a settled legal position that if there is a conflict between the substantive provision of the statute and the Rules framed thereunder then it is the statute which will have a overriding effect and in the present case Section 142(9)(b) has a overriding effect over Section 11B of the Central Excise Act, 1944. If I analyze the provision of Section 142(9)(b) of the CGST Act which provides as follows: (a) Where return filed under the existing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und to reject the refund claim. Further, I find that it is a settled law that whenever two options are available, the assessee may choose the option which is more beneficial for them and in the present case the assessee/appellant has chosen to file the refund claim under Section 142(9)(b) of CGST Act, 2017 which has a overriding effect over Section 11B of Central Excise Act, 1944. The appellant did not choose to carry forward the credit in TRAN-1 and preferred to claim cash refund as provided under Section 142(9)(b) of CGST Act, 2017. Further, I find that both the authorities have held that the appellant failed to furnish the original invoices which are necessary for verification of the claim of refund of the appellant. 6. In view of m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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