AI Drafter 
TaxTMI 
TaxTMI 
2019 (7) TMI 1179
X X X X Extracts X X X X
X X X X Extracts X X X X
....towards Service Tax by SIPCOT. Section 104 was introduced vide the Finance Act, 2017 granting retrospective exemption from taxability on the one-time development charges collected by SIPCOT for the period from 01.06.2007 to 01.09.2016. Further, the issue, as canvassed by the Ld. Advocate for the appellant, revolves around peculiar facts. The service provider, a Government organization, could not have availed benefit enuring from the newly inserted provision, for having passed on the duty to the service recipient - taxpayer. It perhaps thought it fit to allow the taxpayer claim refund of 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 necessar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9 as under : "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 provided by a State Government industrial development corporation or undertaking to industrial units by way of grant of long term lease of thirty years or more of industrial plots, shall....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the operation of Section 104 (3) starting with a non obstante clause does not exclude the operation of any other provisions other than the ones coming under the same Chapter (VA). 8.3 At the cost of repetition, the Section reads that "Notwithstanding anything contained in this Chapter, an application.... shall be made within a period of six months...." and Section 104 does not prescribe the Form of application for refund and for this, the only recourse is to Section 11B qua Section 83. The Revenue may take a stand that Section 104 (3) does not mention about the filing of any annexures, documentary evidences, etc., along with an application for refund, but no statute contemplates filing of an empty application seeking refund, with....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o serve justice. This Court, in Kailash v. Nanhku and Ors., (2005) 4 SCC 480,put it thus: "28.All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 collecte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on has to live its life for the purpose for which it is brought in and to thus advance justice but not to defeat it. Its construction therefore, should be only to promote justice because, as observed by the Hon'ble Apex Court (supra), it is too rudimentary that a rule or procedure is the handmaid of justice and not its mistress. 10. In view of the above discussions and on the peculiar nature of facts involved, the time-limit prescribed under Section 104 (3) is only directory, but however, the time as well as the procedure prescribed under Section 11B applies in full. The Adjudicating Authority is therefore required to grant refund if the refund application is within the time-limit prescribed under Section 11B and not otherwise. ....