2018 (5) TMI 920

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.... the present case are that the appellant is a partnership firm engaged in the construction and sale of residential apartments and is registered with the Department under the category of works contract service. The appellant was receiving construction related advances from their prospective buyers during the construction period. Since there was no clarity on the applicability of the service tax on the construction of residential units in the residential complex built by builders, to be on safer side, the appellant has paid the service tax on receipt of such advances and disclosed the same in the periodical returns filed with the Service Tax department. Service tax was not collected from the prospective buyers but paid from the appellant'....

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....ied upon the ratio of the decision rendered by the High Court of Gujarat in the case of Indo-Nippon Chemicals co. Ltd. vs. UOI [2005(185) ELT 19 (Guj.)] which was upheld by the Supreme Court. It was held in the case that when there was mutual mistake of assessee and the Department resulting in erroneous reversal of credit, limitation starts from the discovery of the mistake and from reversal of credit. Para 33 of the said decision is reproduced herein below:- 33. What we find from the undisputed fact is that there was want of knowledge of the Public Notice to the petitioner, and also to the Department. The Department insisted on reversal of Modvat credit in the Modvat account of the petitioner, as the local Central Excise authoritie....

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.... the Bombay High Court in the case of In House Productions Ltd. Vs. CST, Mumbai [2017(3) GSTL 97 (Bom.)] wherein the Hon'ble High Court has held as under:- 6. As far as the rejection of the claim of Rs. 14 lakh and odd on the ground of limitation is concerned, the same appears to be only on the ground that claim of refund was made after lapse of one year after payment of the Service Tax. No other aspect appears to have been considered by the Authority and the Tribunal. The appellant is relying upon the Circular dated 23rd March, 2004 to suggest that pursuant to the said Circular, he got the knowledge that the appellant is no liable to pay Service Tax and still that Service Tax was being paid by the appellant. We have perused the....

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....h refund is sought is July, 1999, to October, 2000. The notification revising the rate of excise duty was issued on 31-10-2000 and given retrospective effect that is, w.e.f., 1-7-1999. Thus, only on the issuance of this notification, the excise duty was reduced. It would, therefore, be clear that 31-10-2000 is the trigger point which entitled the appellant to claim the refund. In the absence of any such notification there was no cause of action in favour of the appellant to make any such application for refund. As a natural consequence, therefore, the period of limitation has to be reckoned from 31-10-2000. It is not in dispute that application for refund was filed on 19-6-2001 and the period of limitation at that time was one year. The app....

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....e and within four months from the circular, the refund claim was filed which is within the period of one year from the circular. If the refund was   claimed beyond one year from the date of circular, then the limitation would have been applicable. The decision of the Punjab & Haryana High court in the case of Sarita Handa Exports (P) Ltd. is not applicable in the facts and circumstances of the case because in the present case, the limitation as held by the Bombay High Court would start from the day when the circular was issued clarifying that the appellants are not liable to pay service tax. Further the judgment of the Apex Court in the case of Sunrays Engineers Pvt. Ltd. cited supra is also applicable in the present case because ....