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2021 (12) TMI 1232
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....ancelled, the appellant did not rendered any services against the above said orders. The advance received were refunded on 11.10.2018, 30.01.2018 and advance received of Rs. 1,80,000/- against the purchase order dated 12.05.2015 received in May 2017 was adjusted against the amount to be received in respect of new purchase order dated 18.03.2016. The purchase order in which the amount was adjusted, the services were provided under GST regime, therefore, the appellant initially filed the refund claim of Rs. 29,08,210/- but the subject matter of this appeal is restricted to an amount of Rs. 21,52,489/-. The said refund claim was rejected holding that the same is filed beyond one year of the date of payment of service tax in terms of Section 11B of the Central Excise Act, 1944 and the appellant has also failed to pass the bar of unjust enrichment. The appeal was filed against the said order, the matter was remanded back to the adjudicating authority. In remand, the adjudicating authority again rejected the refund claim holding that the same is barred under Section 11B of the Central Excise Act, 1944 and the appellant has failed to pass the bar of unjust enrichment. The said order was c....
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....rovide any services, the amount will be treated as a deposit. She also relied on the decision of Nirbhay Developers Pvt. Ltd. vs. CST, 2018 (2) TMI 483 - CESTAT Ahmedabad. It was also submitted that the claims arising under Rule 6(3) of ServiceTax Rules, 1994 should be disposed of as per Section 142(5) of the Central Goods and Services Tax Act, 2017 which provides that refund of tax paid under the existing law in respect of services not provided, shall be paid in cash. 5. It was further submitted that since the credit is available to appellant in terms of Rule 6(3) of the ServiceTax Rules, Section 142(6)(a) of the CGST Act is also relevant, which provides that such credit shall be refunded in cash provided the test of Section 11B(2) of the Excise Act is satisfied. 6. It was further submitted that the refund claim is not barred by limitation as it is a settled position of law that the amount deposited with the government does not attain the character of a tax in the absence of any liability of assessee. Since Section 11B of the Excise Act provides for refund of any duty/tax/interest, the time limitation contained therein will not apply to the present case. She further relied o....
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....o be provided in the taxable territory and in explanation to Rule3 of Point of Taxation Rules, 2011, a service provider receiving any advances in respect of any services to be provided, was required to pay service tax on the same. As the appellant has discharged their service tax liability on Advances received by them for the services to be provided subsequently as per the said statutory provisions. Therefore, tax so deposited at that instant was "tax" not "deposit". The fact that it became refundable on account of non-provision of services related thereto, which is a point of dispute, would not change its character but only change the appellant's eligibility to seek it back. 9. It is his further submission that after the introduction of GST, two of the appellant's service recipients cancelled three pre-GST era purchase orders and issued fresh purchase orders under GST regime and the services contracted to be provided vide the earlier purchase orders were provided vide Replacement Purchase Orders to the same service recipient. Therefore, the appellant's claim, that they are eligible for refund as the purchase orders were cancelled is hollow. In view of the above fact that servic....
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....which would have to be calculated based on the date of payment of duty in terms of Section 11B. Although, the appellant is entitled for refund of the service tax paid on services which were not rendered by it but the claim shall be governed by the provision of Section 11B of the Act and the refund claim has filed beyond the period of one year from the date of deposit of service tax, therefore, the same is barred by limitation. 14. He further submitted that the refund claim is admissible in terms of Section 142(5) of CGST Act, 2017 clearly provides that any refund claim in respect of service tax in respect of service not provided will be disposed of in accordance with the provisions of the existing law as made applicable to former and Rules framed in terms of former). The appellant itself provides that the refund in cases of service tax paid prior to 30.06.2017 but no services provided subsequently, shall be governed by the Act, i.e. Finance Act, 1994. But, in the present case, the Appellant has provided the services post 30.06.2017. Further, under Rule 6(3) also only cases of services not provided are covered, whereas in the subject case services have been provided. 15. He al....
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.... to be examined and which are extracted herein below:- "Section 11B. Claim for refund of duty and interest, if any, paid on such duty - (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as ....
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....ny other person. Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the (4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. the first proviso to sub-section ....
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.... of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made there under, the date of adjustment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; in this case, the appellant was required to pay service tax in terms of Rule 3 of Point of Taxation Rules, 2011 on advances received in respect of any services to be provided. The said advances so received is required to be adjusted against the amount of service provided by the appellant. Admitted, in this case, no such service has been provided by the appellant. The service tax paid by the appellant is only a provision for payment of service tax on the services which were to be provided later. Therefore, in terms of Section 11B (5) Explanation B (eb) which provides that in case where the duty of excise is paid provisionally under this Act or the Rules made there under, the date of adjustment of duty after the finalization of assessment thereof is the relevant date. ....