TaxTMI 
TaxTMI 
2019 (12) TMI 945
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a period of 99 years; that the appellant paid one-time development charge to SIPCOT; that a Service Tax of Rs. 17,94,672/- on the above development charge was also collected; that the appellant filed a claim for refund of the above Service Tax vide its application dated 11.12.2017 on the ground that the same was erroneously collected, etc. The above refund claim was prompted by the retrospective amendment vide Section 104 of the Finance Act, 2017 whereby, the levy and collection of Service Tax on the one-time payment of development charges was exempted and even the refund mechanism was provided thereunder. The Revenue was of the view that any claim for refund was to be made within a period of six months from the date of assent of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....presentative appearing for the Revenue, seriously contended, while supporting the findings of the lower authorities, that the Tribunal lacks jurisdiction to grant refund by extending the limitation and in this regard, he relied on the following decisions: (i) JSW Dharmatar Port Pvt. Ltd. v. Union of India [2019 (20) G.S.T.L.721 (Bom.)]; (ii) Essar Bulk Terminal Salaya Ltd. v. Union of India [2019 (25) G.S.T.L. 521 (Guj.)]; and (iii) MDP Infra (India) Pvt. Ltd. v. Commr. of Cus., C.Ex. & C.G.S.T. [2019 (29) G.S.T.L. 296 (M.P.)] 4. I have heard the rival contentions, perused the documents placed on record and also gone through the various judgements/orders relied upon during the course of arguments. 5. The dec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar [(1975) 1 SCC 774] are pertinent:(SCC p. 777, paras 5-6) "The mortality of justice at the hands of law troubles a judge‟s conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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. 11. Accordingly, the impugned order is set aside and the appeal is partly allowed and partly remanded with specific direction, for the limited purpose of ascertaining as to whether the date of refund application satisfies the limit under Section 11B or not, and if the same is within the li....