2021 (7) TMI 374

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.... the appellant to the extent that the said refund claim was not barred by limitation. The appellant filed appeal against the impugned order dated 8.5.2012 passed by the Commissioner (A) whereby the Commissioner (A) has rejected the appeal of the appellant and upheld the Order-in-Original. 2. Briefly the facts of the present case are that appellant had undertaken the activity of trenching and laying of cables under/alongside roads for their customers' viz., BSNL and TATA Teleservices during the period from 16.6.2005 to 16.9.2008. The officers of the Central Excise, Mysore proceeded against him for non-payment of service tax in respect of trenching work undertaken by him. During the course of investigation, a statement of the appellant was....

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....hallenged the order of the CESTAT before the Hon'ble High Court of Karnataka, who vide its order dated 26.2.2021 in Civil Appeal No.43/2018 has allowed the appeal filed by the appellant holding that the refund claim was not hit by limitation and has remanded the matter with a direction to decide the case in accordance with the provisions of law. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that there is no dispute about the fact that the impugned activity was not taxable and this is evident from a common order i.e., Order-in-Appeal N....

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....e said Circular. He further submitted that both the authorities have held that the Circular issued by the Board is prospective and cannot be made applicable with retrospective date. In support of this submission, he relied upon the following decisions. • M/s. Chalet Hotels Ltd. vs. Commissioner of Central Tax, Bengaluru East: 2019 (6) TMI 571 - CESTAT Bangalore. • M/s. M.G.M. International Exports Ltd. vs. The Assistant Commissioner of Service Tax, Chennai: 2021 (4) TMI 1167 - Madras High Court 6. In contra, the learned counsel for the appellant submitted that the beneficial Circular should be applied retrospectively while oppressive circular should be applied prospectively. To buttress his submission, he placed....