TaxTMI 
TaxTMI 
2021 (2) TMI 367
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....2. This exemption was however, withdrawn by Notification dated March 01, 2015 that was made effective from April 01, 2015. The appellant claims that upon withdrawal of this exemption, it paid service tax during the period commencing April 01, 2015 upto February 29, 2016 on the services provided by the appellant to government authorities or local authorities. 3. The Finance Act, 2016, which was presented in the Parliament on February 29, 2016, inserted sections 101, 102 and 103 to the Finance Act. Section 102 contains special provision for exemption in certain cases relating to construction of Government buildings. Sub-section (1) of section 102 provides that notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the period commencing April 01, 2015 and ending with February 29, 2016 (both days inclusive), in respect of taxable services provided to the Government, a local authority or a Governmental authority, by way of construction, erection, commissioning etc., under a contract entered into before March 01, 2015. Sub-section (2) of section 102 provides that refund shall be made of all such service tax which has been collected but wh....
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....o filed a hard copy of the refund claim on December 20, 2016 in the office of the Assistant Commissioner of Service Tax-Division-I [the Assistant Commissioner] 6. The Assistant Commissioner wrote a letter dated January 17, 2017 to the appellant in connection with the refund claim filed by the appellant on December 20, 2016 mentioning therein that while processing the refund claim it was noticed that some documents were not filed by the appellant. The appellant was, therefore, asked to submit the documents. This letter of the Assistant Commissioner was followed by reminders dated April 28, 2017 and November 29, 2017. 7. Thereafter, the appellant sent a letter dated December 16, 2017 to the Superintendent (Refund) pointing out that the appellant had paid service tax as per the bills, but service tax components were not received from NBCC(India)Limited, which was the main contractor, as the project was exempted from service tax. The Superintendent (Refund), however, sent a letter dated January 31, 2018 to the appellant in connection with the aforesaid letter dated December 16, 2017 requiring the appellant to furnish information for processing the refund claim. The appellant clai....
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....sioner was assailed by the appellant before the Commissioner (Appeals). The contentions advanced on behalf of the appellant were, however, not accepted and the appeal was dismissed holding that application submitted by the appellant was beyond the time stipulated in sub-section (3) of section 102 of the Finance Act. The relevant portion of the order passed by the Commissioner (Appeals) is reproduced below: "8. I observe that the assent to the Finance Bill 2016 had been given by the Hon'ble President on 14.05.2016. The time limit prescribed for refund of service tax specified that the claim should be made within a period of six month from 14.05.2016. Hence appellants were required to file the refund claim on or before 13.11.2016. Further, it is only by way of Section 102(2) that the refund of tax paid during 01.04.2015 and 29.02.2016 was provided for. However, this is subject to time limit for filing claim prescribed in Section 102(3). Provisions of Section 102 being special dispensation, levy of service tax was normal and proper except for the stipulations under Section 102. The provisions of the Act being substantive, delay in filing claim cannot be treated as procedural infirm....
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....nd what is relevant is acceptability of the explanation of delay, that in this case there is no explanation of which justify the late submissions of such documents. Thus, there is no ground to interfere with the observations & findings of the adjudicating authority. (emphasis supplied) 13. Shri Ved Prakash Batra, learned Consultant appearing on behalf of the appellant made the following submissions: (i) The Commissioner (Appeals) erred in not accepting the e-filing date of the refund claim as the date of filing the refund claim, as the Department itself had allowed on-line filing of refund claims and had also prescribed the procedure to do so. In this connection reference has been made to the Trade Notice dated September 17, 2009 that prescribes the procedure to avail the facility of ACES as also the Circular dated March 23, 2010 that provides for the procedure for electronic filing of the returns; (ii) The Commissioner (Appeals) erred in holding that the refund claim was "time barred" on the ground that the appellant had not provided cogent reasons for delayed filing of the hard copy of the refund application accompanied by the relevant documents; and (iii) In any v....
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....but which would not have been so collected had sub-section (1) been in force at all material times. Sub-section (3), which is relevant for the purpose of determining the issue involved in this appeal, provides that notwithstanding anything contained in this Chapter (i.e. Chapter VA), an application for claim of refund of service tax shall be made within a period of six months from the date on which the Finance Bill, 2016 received the assent of the President. Parties do not dispute that the President gave the assent on May 14, 2016. 18. The appellant claims that it submitted the refund application online on October 13, 2016. It is, therefore, necessary to examine the procedure for filing an application online. According to appellant, the procedure is provided in the Trade Notice dated September 17, 2009 as also the Circular dated March 23, 2010 issued by the Central Board of Excise and Customs. 19. The Trade Notice provides that to transact business on ACES, a user has to first register with the ACES through a process called "Registration with ACES". A detailed procedure for taking registration has also been provided for new assessee, existing assessee, non-assessee and large ....
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....r dated March 23, 2010 issued by the Central Board of Excise and Customs also deals with procedure of electronic filing of Central Excise and Service Tax returns and for electronic payment of excise duty and service tax. This has been divided into 10 modules, including electronic filing of refund claims and their processing. It also provides for registration by a new assessee, existing assessee or non assessee and a Large Tap Payer. It also provides that an assessee can electronically file statutory returns by either filing it online or downloading the off-line return utilities which can be filled in off-line and uploaded to the system through the internet. Steps for preparing and filing returns have also been also provided. They are reproduced below: a. Steps for preparing and filling returns (i) Returns can be prepared and filed on line by selecting the 'File Return' option under RET module after logging into the ACES. (ii) All validations are thrown up during the preparation of the return in this mode and the status of the return filed using the online mode is instantaneously shown by ACES. (iii) Returns can also be prepared and filed off-line. Assessee downloads the....
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....sees are not allowed to proceed further unless the error indicated is corrected. 2. A return filed electronically is subject to automatic verification process by the application and defective returns are marked to the departmental officer for review and correction. While reviewing the return the officer may seek some clarification from the assessee, call for some information, records or documents which should be furnished by the assessees. In case of review and correction of returns by the departmental officers, assesses will receive a message from the application and they can log in to the application to view the reviewed returns online. 3. Returns, captured off-line using the Downloadable utility and uploaded later on, are further subjected to certain validation checks. Processing of uploaded returns, using the off-line versions, is done at the end of one business day and the status can be viewed by the assessees under the 'VIEW STATUS' link under 'RET' module. Status is described as 'UPLOADED', 'FILED' or 'REJECTED' and they denote as follows: • UPLOADED denotes that return is uploaded and under processing (assessees are advised to view the status after the en....
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....laims that after the withdrawal of the exemption, the appellant started paying service tax. However, in view of the provisions of section 102 of the Finance Act that was inserted by Finance Act 2016, no service tax was to be levied or collected during the period April 01, 2015 to February 29, 2016 on the aforesaid services and under sub-section (2) refund was to be made of all such service tax which was collected but which would not have been so collected had sub-section (1) been in force at all relevant times. Sub-section (3) provides that 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 receives the assent of the President. This is a special provision for exemption from service tax in certain cases and, it provides that the refund claim for service tax has to be filed within a specified time. When a specific provision has been made in section 102 of the Finance Act for claiming refund of service tax paid during the period commencing April 1, 2015 upto February 29, 2016 in respect of the specified services and it also prescribes that the application for the claim of refund of service tax shall....
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....tax under section 104 of the Finance Act. The observations are as follows. 5.1 The main crux of the arguments of the assessee through its Ld. Advocate is that Section 104 is under Chapter VA of the Finance Act, 1994, whereas Section 83 falls under Chapter V of the Finance Act, 1994, and therefore, the right of the service recipient to claim refund is governed by Section 83 read with Section 11B of the Central Excise Act, 1994 and not by Section 104(3) ibid. Further, it is his case that Section 104(3) does not override Section 11B since both Section 83 and Section 104(3) fall under different Chapters and it is Section 83 that makes provisions of Section 11B applicable to Service Tax matters as well. 5.2 In view of the above, it is the case of the assessee that the refund application 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. 8.2 The above Section starts with a non obstante clause operating as an exclusion clause to exclude the charging Section 66 or Section 66B. Further, Sub-Section (3) of Section 104 also starts with a non obstante clause, t....
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....cer to call for additional documents/evidences, if need be. 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. 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. (emphasis supplied) 31. Though the learned Consultant for the appellant is correct in his submission that what was stated by the learned Member in connection with section 104 of the Finance Act would also apply to section 102 of the Finance Act, but it is not possible to accept the views express....
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....iled steps for taking registration have also been provided. The system generates a registration number and it is only thereafter that an assessee can transact business through ACES. The appellant has enclosed a copy of the application, which the appellant contends was submitted online. Registration Number has, however, not been indicated by the appellant. The appellant, therefore, could not have transacted any business through ACES. This procedure for registration has also been prescribed in the Circular dated March 23, 2010, which has also been relied upon by the appellant. 36. It also transpires that from a perusal of the Trade Notice that an assessee can electronically file a statutory return by either filing it online or downloading off-line return utilities which can be filled-in off-line and uploaded to the system through internet. The returns uploaded through this procedure are validated by the ACES before acceptance into the system and an assessee can track the status of the return by selecting the appropriate option in the sub-menu which would show the status as "uploaded" which means under process by ACES, or "filed" which means successfully uploaded. The appellant has....