TaxTMI 
TaxTMI 
TaxTMI 
2019 (2) TMI 208
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.... "(i) Construction of EWS houses for Special Area Development Authority (A Government Authority) vide work order No.02/SADA/ 2014-15, Agreement No. 04 dated 22.12.2014. (ii) Construction of LIG houses (Affordable Housing) for Indore Development Authority vide Four/Accounts/ 12-13/70006, dated 19.11.2012, Agreement No. 82/2012- 13/IDA. (iii) Construction of Model School Building at Morena for PWD, PIU Division-4 Gwalior (Department of Government of Madhya Pradesh) work order No: 02/2012-13 dated 15.06.2012, E-tender No. 14204 and office No. 1589. (iv) Construction of Model School Building at Sabalgarh for PWD, PIU Division-4 Gwalior (Department of Government of Madhya Pradesh) work order No. 02/2012-13 dated 15.06.2012, E-tender No. 14209 and office No. 1599 dated 02.11.2012. (v) Construction of Model School Building at Pahadgarh for PWD, PIU Division-4, Gwalior (Department of Government of Madhya Pradesh) work order No: 02/2012-13 dated 15.06.2012, E-tender No. 14209 and office No. 1601 dated 02.11.2012. (vi) Construction of Boundary wall at National Law Institute University, a university established by State Legislature of Madhya Pradesh, Bhopal vide ref. no. by act No. ....
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.... been collected but which would not have been so collected had sub-section (1) been in force at all material times. (3) Notwithstanding anything contained in this Chapter, an application for the claim of refund of service tax shall be made within a period of six months from the date on which the Finance Bill, 2016 receives the assent of the President." The appellant invoking Rule 173-S of the Central Excise Rules, 1944 applied for refund of Rs. 25,49,317/- vide Form-R on 22/03/2017, received by the Department on 24/03/2017. The Authority concern (Assistant Commissioner) on receiving the application issued show cause notice on 01/05/2017 calling upon the appellant as to why the application for refund be not rejected for the following reasons:- "2. And whereas there is no provision for refund of Service Tax other than by way of adjustment Under Finance Act, 1994. However certain provisions of Central Excise Act, 1944 have been made applicable in Service Tax matters through Section-83 of Finance Act, 1994 which read as under:- 2(a) "Section-83. Application of certain provisions of Act 1 of 1944.- The provisions of the following sections of the Central Excise Act, 1944, as in....
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....s that if the duty of excise borne by the buyer and if he had not passed on the incidence of such duty to any other person then the amount shall be paid to such buyer. Explanation annexed to Section 11B defined the 'relevant date' for the purpose of reckoning time period within which refund claim is to be filed. This date is the date of purchase of 'goods' in the case of claimed is other than the 'manufacture'. 3. And whereas the refund claim was received on 24.03.2017 therefore the service tax and interest deposited during the period of 01/03/2015 to 30/09/2015 through challans has been found time barred from the statutory time-limit defined under section 11B of the Central Excise Act, 1944 wherein it is clearly mentioned that refund claim should be submitted within a period of one year of the relevant date. 4. In view of the grounds mentioned above, the claim for refund of Service Tax filed by the Noticee on 24.03.2017 for Rs. 25,49,317/- does not appear to be admissible to them since refund claim of time barred Under Section 11-B of the Central Excise Act, 1944. 5. Now, therefore, the Noticee M/s MDP Infra (India) Pvt. Ltd., Suresh Nagar, Thatipur....
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....id by the appellant, the department has no authority to withhold the same on the ground of limitation. It was stated that the provisions of Section 11B of 1944 Act would get attracted when there is a liability and excess duty/ tax is deposited and later on the refund of such excess amount is sought. It was stated that being exempted, the appellant was not liable to pay the service tax. Therefore, the amount received by the department was not towards the tax as would be governed by the provisions of Section 11B. It was urged that even if it is then the period of limitation prescribed being one year and since notification for restoration of exemption was issued on 01/03/2016 and the appellant had filed the refund claim on 24/03/2017, the same should have been allowed. The appeal was, however, dismissed on 28/09/2017 by Commissioner (Appeals), on the findings:- "7. To put the legal position in proper prospective, I may mention that initially the mega exemption notification No. 25/2012-ST granted exemption interalia to certain activities under taken for the government. The said notification was amended vide notification No.06/2015- ST dated 01.03.2015 where by the said exemption for....
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.... The said section came into effect on 14.05.2016. The claim having been filed on 24.03.2017 is clearly beyond the time limit of six month prescribed in the section 102. Therefore, the adjudicating authority has rightly rejected the refund claim. 9. I may also to mention that the claim filed by the appellant is also beyond one year from the date of issue of notification No. 9/2006/ST dated 01.03.2006 and to some how claim the refund from the department they have arbitrarily calculated the time limitation of one year from the month of issuance of the said notification. They have also deliberately avoided any mention of section 102 inserted vide Finance Act 2016 which would have exposed and undetermined their refund claim as the same was clearly time barred." On further appeal, the Tribunal vide impugned order affirmed the order rejecting refund claim. The Tribunal taking into consideration the stipulations contained under Section 102 of the Finance Bill 2016 prescribed specific period of limitation of six months from the date of the assent of the President (which being 14.05.2016) for refund. And that the appellant applied for refund on 24/03/2017, i.e., with a delay of 131 days....
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....Evidently, the works contract undertaken by the appellant during said period was not exempted. Therefore, the question that, the service tax and interest was paid under misconception does not arise, as would give rise for the proposed substantial question. As regard to substantial question of law at 'B', the said question in given facts of present also does not arise for consideration. The appellant was under legal obligation to deposit the service tax in respect of the service rendered qua non-exempted service. The contentions that it was beyond the control of the appellant to deposit the service tax on exempted service is misconceived. Evidently, the notification No. 12/2012 & 25/2012 ceased to exist w.e.f. 01/04/2015. The exemption was revived by notification dated 01/03/2016. But since it was prospective in effect, the appellant was not entitled for any exemption, which the appellant was aware of and with open mind and eyes deposited the service tax due with interest. It was only by virtue of subsequent legislation the notification was made effective from retrospective date with the stipulations that refund can be claimed within specific time provided. There was thus ....