TMI Blog2023 (10) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in APAR INDUSTRIES (POLYMER DIVISION) VERSUS UNION OF INDIA [ 2015 (12) TMI 1255 - GUJARAT HIGH COURT] has held in the above case that the time-limitation under Section 11B is to be reckoned from the date of original application for refund, which is 18.03.2011 in the case on hand. Further, it has been held that when the petitioner re-presented such rebate applications in correct form, backed by necessary documents, the same should have been seen as a continuous attempt on part of the petitioner to seek rebate. Thus seen, it would relate back to the original filing of the rebate applications, though in wrong format. Admittedly, the date of the original refund claim is within one year as stipulated under Section 11B ibid. The Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is without any basis, for which reason the impugned order is set aside. The appeal is allowed. - MR. P. DINESHA, MEMBER (JUDICIAL) AND MR. M. AJIT KUMAR, MEMBER (TECHNICAL) Shri G. Shiva Kumar, Chartered Accountant for the Appellant Shri R. Rajaraman, Assistant Commissioner for the Respondent ORDER This appeal is filed by the assessee against the Order-in-Appeal No. MAD-CEX-000-APP-052-13 dated 28.06.2013 passed by the Commissioner of Central Excise (Appeals), Madurai. 2. Heard Shri G. Shiva Kumar, Ld. Chartered Accountant for the appellant and Shri R. Rajaraman, Ld. Assistant Commissioner for the Revenue. 3. After hearing both sides and after going through the documents placed on record, we find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flat for her personal use and who had borne the Service Tax element charged by the builder, claimed refund of the said Service Tax on the ground that the flat constructed and purchased by her was for her personal use and thus, she was entitled for the refund in view of C.B.E.C. Circular No. 108/02/2009-S.T. dated 29.01.2009. 5.3 Upon receipt of the said application, the Revenue issued a Show Cause Notice dated 04.07.2011 proposing thereby to reject the refund claim of the appellant on the ground that the payment of Service Tax by the builder was proper and in order, the time-limitation of one-year had lapsed when the application for refund dated 06.04.2011 was made and therefore the same was time-barred, the exclusion clause in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears that the appellant preferred an appeal before the Commissioner (Appeals) who also having rejected the appellant s claim vide impugned Order-in-Appeal No. Order-in-Appeal No. MAD-CEX-000-APP-052-13 dated 28.06.2013, the present appeal has been filed before this forum. 8.1 The Ld. Chartered Accountant would submit at the outset that the very same issue was considered in the above quoted order of the CESTAT, New Delhi in the case of Chandigarh Vayu Bharti Co-op. Society (supra) and also by the co-ordinate Mumbai Bench in the case of M/s. Neel Sidhi Enterprises v. Commissioner of Service Tax, Mumbai [2013-TIOL-681-CESTAT-MUM]; the Revenue has not been able to controvert the orders of the co-ordinate Benches nor has the Revenue filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase that the time-limitation under Section 11B is to be reckoned from the date of original application for refund, which is 18.03.2011 in the case on hand. Further, it has been held that when the petitioner re-presented such rebate applications in correct form, backed by necessary documents, the same should have been seen as a continuous attempt on part of the petitioner to seek rebate. Thus seen, it would relate back to the original filing of the rebate applications, though in wrong format. Admittedly, the date of the original refund claim is within one year as stipulated under Section 11B ibid. 10.4 Further, we also note that the Department has accepted the said decision of the Hon ble Gujarat High Court vide Circular No. 1063/2/2018-C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant before us is the person who has borne the incidence of tax and hence, any person appearing in the said section clearly covers the appellant as well. This is also for the reason that, as admitted by the builder, the builder had only remitted the tax portion paid by the appellant to the Department, and as admitted by his certificate, as having included the tax portion in the consideration received. Hence, we hold that the appellant was very much within her right to have claimed the impugned refund and further that she was also entitled for the same. Moreover, if we accept the reasons in the Order-in-Original, as upheld in the impugned order, that the builder had discharged Service Tax rightly since it was for its self-use, then the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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