TaxTMI 
TaxTMI 
TaxTMI 
2017 (10) TMI 141
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....16 and thus barred by limitation. On adjudication, the refund claim was rejected by the adjudicating authority. Aggrieved by the said order, the Respondents filed an appeal before the ld. Commissioner (Appeals), who in turn, set aside the order of the Adjudicating Authority and allowed the appeal of the Respondent. Hence, the Revenue is in appeal. 3. The ld. A.R Shri J. Nagori for the Revenue argued that the learned Commissioner (Appeals) has erred in condoning the delay of 15 days in filing the Refund Application considering the same as procedural lapse, when no application for condonation of delay had been filed by the Respondent before the Adjudicating Authority. He further submits that the ld. Commissioner (Appeals) has exceeded his jurisdiction as there is no provision under Section 103 of Finance Act,2016 for condonation of delay, if any, beyond the period of six months prescribed thereunder in claiming the refund of Service Tax paid for the specified period from 01.04.2015 to 29.02.2016. It is his contention that the case law referred by the ld. Commissioner (Appeals) in the impugned order delivered in a different context and hence not relevant to the facts of the present c....
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....Hon'ble Allahabad High Court in the case of CCE Vs Barco Electronics Systems Ltd - 2015 (322) ELT 27 (All.) 5. He has submitted that soon after the Finance Act,2016 was passed, in order to comply with the conditions stipulated under Section 103 of Finance Act,2016, so as to claim the refund of service tax paid during 01.4.2015 to 29.02.2016, the Respondent made an application to the Director, Ministry of Shipping, on 10.03.2016 for appropriate certificate indicating that the contract was entered on or before 01st March2015. It is his contention that the said certificate complete in all respects was issued to them only on 22.11.2016 after protracted correspondences with the said Ministry and the refund claim was filed on 28.11.2016. It is his contention that in view of the provisions contained in Section 15 of Limitation Act, 1963, the period lost in collecting the relevant documents should not be considered in computing the period of six months prescribed under Section 103 of Finance Act, 2016. The learned Advocate submitted that since all the documents were not available with them, therefore, the refund could not be filed in time. He submits that for no fault of theirs, the r....
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....he case of Precision Controls Vs CCE Chennai - 2004 (176) ELT 147 (Tri-Che). 8. Heard both sides and perused the records. The undisputed facts relevant to the present case are that the Respondent had filed refund of Service Tax paid for the period 01.04.2015 to 29.02.2016, in view of Section 103 of Finance Act, 2016. The refund claim was, however, filed on 28.11.2016 i.e. six months after the assent of the Finance Bill,2016 by the President of India. The said Section 103 of Finance Act reads as follows:- "103. Special provision for exemption in certain cases relating to construction of airport or port." (1) Notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the period commencing from the 1st day of April, 2015 and ending with the 29th day of February, 2016 (both days inclusive), in respect of services provided by way of construction, erection, commissioning or installation of original works pertaining to an airport or port, under a contract which had been entered into before the 1st day of March, 2015 and on which appropriate stamp duty, where applicable, had been paid before that date, subject to the condition that Ministry o....
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.... complete in all respects on 22.11.2016, ought to be deducted in computing the period of six months as per sec.15 of the Limitation Act,1963. In support, the learned Advocate refers to the judgment of Hon'ble Supreme Court in the case of M.P. Steel Corporation (supra) and also submits that sub. Sec.(3) of Sec.103 of the Finance Act,2016 is not a mandatory provision and hence the period of limitation prescribed thereunder could be relaxed/extended. 13. The Revenue's contention is that the said sec.15 of Limitation Act,1963 is neither relevant nor applicable to the facts of the present case. Besides, the provisions of Limitation Act are not applicable to the issues arising under Central Excise Act or the Finance Act,1994 in view of the principle of law laid down by three Members' Bench of the Hon'ble Supreme Court in the case of Hongo India (P) Ltd (supra). 14. We find merit in the contention of the learned Authorized Representative for the Revenue, in view of the observation of Hon'ble Supreme Court in the case of Hongo India (P) Ltd which reads as under:- "20. Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) w....
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....n the circumstances/eventualities in prescribing the period of limitation in filing the refund claim, without making any reference to possible delay in filing it and then authorizing the officers exercising jurisdiction, to condone the same on sufficient cause being shown. 16. The next of argument advanced by the learned Advocate for the Appellant that even though the word 'shall' has been used under said sub sec.(3) of Sec. 103 of the Finance Act, 2016, but the said provision should be considered as directory one and not mandatory one, hence, any delay beyond six months could be condoned by the authorities as procedural lapse. Hence, the Ld. Commissioner(Appeals) has jurisdiction and he has rightly condoned the delay. In support, he has referred to the decision of Hon'ble Allahabad High Court in the case of Barco Electronics Systems Ltd (supra). 17. We do not find force in the said argument of the Ld. Advocate for the Appellant. The application/interpretation of time limits prescribed in exercising a particular right vested under different provision of an Act or Rules cannot be uniformly applied to all circumstances under the said Act or Rules. For example, the time limit pr....
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....f a flourish of writing style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation." 19. Applying the aforesaid principle, the question whether the time limit prescribed under the refund provisions in the context of refund claimed could be relaxed/ extended by the authorities, has been considered by the Hon'ble Supreme Court in the case of UOI Vs. Kirloskar Pneumatic Company 1996 (84) ELT 401 (SC). Their Lordships observed as: "10. According to these sub-sections, a claim for refund or an order of refund can be made only in accordance with the provisions of Section 27 which inter alia includes the period of limitation mentioned therein. Mr. Hidayatullah submitted that the period of limitation prescribed by Section 27 does not apply either to a suit filed by the importer or to a writ petition filed by him and that in such cases the period of limitation would be three years. Learned counsel refers to certain decisions of this Court to that effect. We shall assume for the purposes of this appeal that it is so, notwithstanding the fact that the said question is now pending before a larger Constitution Bench of nine Judges along with the ....
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....at export includes goods shipped as provision or stores for use on board a ship proceeding to a foreign port or supplied to a foreign going aircraft. Resultantly, the relevant date would be the one prescribed in sub-clause (i) of sub-clause (a) when goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded or leaves India. Accordingly, the relevant date in the present case would be when the fuel was supplied by the petitioner to Air India for its foreign going flight which left the country. In the present case, such supply was made on different dates between April, 2005 and October, 2005. Thus the refund claim which was filed on 22nd March, 2007 was clearly beyond the period of one year. It thus clearly emerges that refund claim was made beyond the period of limitation prescribed under Section 11B of the Act. 13. We are unable to uphold the contention that such period of limitation was only procedural requirement and therefore could be extended upon showing sufficient cause for not filing the claim earlier. To begin with, the provisions of Section 11B itself are sufficiently clear. Sub-section (1) of Section 11B, as already noted, ....