Refund of unclaimed service tax in Tran1

[JSW CEMENTLIMITED]

Dear Expert,

Kindly give your valued opinion on the following issue.

We have paid service tax under reverse charge for some old bills pertaining to service tax regime after the due date of tran1 filing. Can we claim refund of such service tax under section 142(3) of CGST Act, 2017.

[rajkumar shukla]

Section 142(3) talks about claim of refund filed before , on or after the appointed day i.e. 01.7.2017 under the existing law.kindly clarify as to how the refund is due to you under the existing law.? It can not be claimed as refund under the existing law just because it was not claimed in tran 1.

[JSW CEMENTLIMITED]

Sir,

Kindly clarify under what situation Section 142(3) refunds is applicable.

[rajkumar shukla]

When you claim refund , you have to show how it is due to you.Do you think it is due to you under existing law?

[JSW CEMENTLIMITED]

Serivce tax or excise duty credit was available to an assessee till one year from the date of invoice. With the introduction of GST, the service tax law or Excise law has been repealed. If any of the bills which are well within the eligibility period of cenvat credit rules has been missed out in Tran1 or where service tax was paid on reverse charge depending upon the point of taxation along with interest after the due date for tran1, can the Govt. take away that benefit just because the credit was not carried forward in Tran1. If we take it on a reverse way, will the Govt. not issue SCNs had the service tax not paid in GST Era for the transaction effected pre-GST. Can we take a stand that since, we were unable to carry forward this tax due to non-receipt of the bills in time, and non-availability of service tax credit in GST, we are eligible for refund of tax paid.

I would further like to know, under what situation refund application is to be filed under section 142(3) of CGST Act, 2017

[DR.MARIAPPAN GOVINDARAJAN]

The last date for TRAN-1 has already been over. Your argument is somewhat genuine. You may approach the High Court directing GSTN to open the system to enter your pending claims. It is my view.

[rajkumar shukla]

I agree. There appears no provision in GST law for such situations. you can approach High Court for remedy on the ground of equity.

[JSW CEMENTLIMITED]

But, to approach High Court I shall have a refund rejection speaking order from the department.

[rajkumar shukla]

In my view refund may be rejected not on the ground of equity but because it had not accrued to you under the existing law . Invoking writ jurisdiction may be correct approach.

[Alkesh Jani]

Sir, I have slightly different issue but have filed refund claim of my client on the same ground as mentioned above. Here, it is to note that filing before, on or after however, I have filed refund claim in Form-R and waiting for SCN from the department.

Thanks with Regards,

[YAGAY and SUN]

Writ petition won't support to get the refund.

AI Summary

Refund of pre GST service tax requires proof of entitlement under prior law and may be barred by missed transitional filing.
Refund claims for pre GST service tax paid under reverse charge must be shown to have accrued under the pre GST law; omission from the transitional statement alone does not create entitlement. With the TRAN 1 filing window closed, taxpayers face possible rejection for lack of accrual and may file refund applications in the prescribed form or pursue judicial remedies to seek system access or equitable relief after departmental action.