2019 (7) TMI 907

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....uld not have availed benefit enuring from the newly inserted provision, for having passed on the duty to the service recipient - taxpayer, hence thought it fit to allow the taxpayer claim the tax it paid and with an intention to enable such benefit to the taxpayer, requested the recipient, as late as after nearly five months, to make necessary application for refund. Accordingly, the appellant made a claim for refund of the above amount since SIPCOT issued a letter dated 12.09.2017 expressing its "no objection" for the appellant to claim refund. 2.2 Based on the request for refund claim, a Show Cause Notice dated 14.03.2018 came to be issued to the assessee-appellant wherein the Department has duly taken note of the facts of "No Claim" certificate issued by the service provider and also the proof of payment of Service Tax to the Government. In the Show Cause Notice, the Adjudicating Authority refers to Sub-Sections (2) and (3) of Section 104 of the Finance Act, 2017, which prescribed the date of assent of the President of India and the time-limit for making refund claim and thereby proposes to deny the refund as time-barred. 2.3 It is most relevant to note at this juncture that i....

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....tion is required to be filed under Section 11B read with Section 83 ibid. and consequently, the time-limit available is one year and not six months as held by the lower authorities. 6. Rebutting the contentions of the assessee, the arguments of the Ld. AR for the respondent are that Section 104 being a special provision, the same has to prevail over the regular provisions and therefore, the time-limit of six months is very much applicable as held by the lower authorities. 7. I have considered the rival contentions, gone through the various documents placed on record and have also gone through the various decisions referred to during the course of hearing. 8.1 Section 104, which is introduced in the statute book vide the Finance Act, 2017, reads as under : "[SECTION 104. Special provision for exemption in certain cases relating to long term lease of industrial plots. - (1) Notwithstanding anything contained in section 66, as it stood prior to the 1st day of July, 2012, or in section 66B, no service tax, leviable on one time upfront amount (premium, salami, cost, price, development charge or by whatever name called) in respect of taxable service provided or agreed to be provid....

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....out any documents/evidences, at least to the effect that the amount claimed as refund was in fact remitted to the Government account. A cursory look at the CBIC website (http://www.cbic.gov.in/resources//htdocs-cbec/refund-rebate/refundrebate-docs.pdf;jsessionid=E715A9021149926E0FC4240BB1DC5D13) contains inter alia types of refund/rebate applications and the list of documents to be filed along with the applications. For an application for refund is contemplated only under Section 11B and a number of documents are mentioned to be filed along with the prescribed format. Hence, there may not be any difficulty in mentioning that an application referred to is a complete application since filing of an 'empty' application is not an empty formality; it has to go with all enclosures and documentary evidences in support for enabling the appropriate officer to understand the issue from such a complete application and thereafter, it is for that officer to call for additional documents/evidences, if need be. 8.4 In this context, it is very useful to refer to a recent judgement of the Hon'ble Supreme Court in the case of M/s. JK Jute Mill Mazdoor Morcha Vs. Juggilal Kamlapat Jute Mills Company ....

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....t it as all the laws ofprocedure are based on this principle." This judgment was followed by the Constitution Bench decision in Sarah Mathew v. Institute of Cardio Vascular Diseases and Ors.,(2014) 2 SCC 62 [at paragraph 49]." 9.1 Therefore, a harmonious reading of the provisions points to one and only conclusion that though Section 104 is a special provision, it is practically dependent on Section 11B and Section 83 connects both the above provisions and thus, all procedures as in Section 11B would apply. There may be applications within six months, as contemplated in Section 104 (3), but that cannot take away the applicability of Section 11B. 9.2 The next question could well be about the word 'shall' used in Section 104 (3). The Constitution guarantees that no tax shall be collected without the authority of law and the statute also, by way of insertion of new Section 104, has made it clear that no tax shall be collected and thereby has also provided for granting refund of such tax collected in certain special cases. So, can the authorities still hold back the tax so collected, with them, not because of the appellant being ineligible, but because of an artificial fiction? Thus....