TaxTMI 
TaxTMI 
TaxTMI 
2022 (6) TMI 138
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....nt, notice of such intent had not been served on him and contends that the impugned order is replete with incorrect surmises. 2. Recounting the facts leading to the dispute, Learned Counsel for the appellant submits that, upon realizing that the activities undertaken by persons engaged by him for construction of his own dwelling were not 'taxable service' in accordance with serial no. 14 of notification no. 25/2012-ST dated 20th June 2012, refund of tax charged in five invoices of M/s Gandhi Associates & Co between 20th February 2014 and 22nd December 2014 was claimed. Learned Counsel further informed that the tax paid in invoices of eight other persons similarly engaged by the appellant had been refunded by the competent authority without any cavil from the reviewing authority. It was contended by him that, on this sole ground of discriminatory treatment and deviation from the departmental standpoint, the impugned order merits setting aside. 3. He also drew attention to '16. On plane reading of the above notification it is observed that exemption is available for construction of a single residential unit designed for use wholly or principally for residential purpos....
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....on of original works pertaining to,- ........ (b) a single residential unit otherwise than as part of a residential complex.' in notification no. 25/2012-ST dated 20th June 2012 (popularly denominated as the 'mega exemption' notification) after the introduction of 'negative list' regime of tax on services. 4. As far as the bar of limitation of time is concerned, which may, at best, impact only one invoice of 20th February 2014 in which tax of Rs. 1,73,725 was included, he relied upon the decision of the Hon'ble High Court of Bombay in Parijat Construction v. Commissioner of Central Excise [2017 (10) TMI 659 (Bom)] to contend that tax collected without authority law cannot be retained in the Consolidated Fund of India by recourse to the 'relevant date' and closure of the statutory window for claim to be preferred. 5. Learned Authorized Representative submitted that the claim had to be barred at the threshold as the appellant was neither entitled to claim the refund of tax discharged by another nor was the claim filed in consequence of assessment having been set aside as held in the decision of the Hon'ble Supreme Court in ITC Ltd v. Commissioner of Cen....
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....pellant therein on the error in invoking the bar of limitation of time and in the finding of lack of evidence of tax having been paid that prompted the first appellate authority to attempt another tack for negating the claim for refund. 8. The appellant was charged to tax on services procured from 'providers' for the construction of eligible 'residential unit' that was exempted from the levy by notification even though the 'providers' could have claimed immunity from the obligation otherwise devolving on 'person liable to pay tax'; it is one of the incongruities of indirect tax that incentive to claim such end-use exemption is not compelling enough for assessees to enable the relief intended by law. Unfortunately too, the travails of pursuing claim for refund and near certainty of recourse to appellate remedy is disincentive enough to compel resigned forfeiture of entitlement to the State by the intended beneficiary of tax policy. It is rarely that a person who has borne the burden seeks refund of tax intended to be foregone under authority of law and the unalloyed hesitancy on the part of tax authorities to conjecture upon that entitlement as well as unfamiliarity of offici....
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..... This was not a disqualification adjudicated upon by the original authority or considered, even extraneously as locus standii was, by the first appellate authority. 11. The decision of the Hon'ble Supreme Court was rendered in appeals arising from allowing of refund claims preferred by assessees, i.e. 'persons liable to pay tax' and, more particularly, in the context of gradual drift to 'self-assessment' procedure prompted by acceptance of submission of appellants that earlier decisions of the Hon'ble Supreme Court in Collector of Central Excise, Kanpur v. Flock (India) Pvt Ltd [2000 (120) ELT 285 (SC)], in so far as refund of duties of central excise is concerned, and in Priya Blue Industries Ltd v. Commissioner of Customs (Preventive) [2004 (172) ELT 145 (SC)], pertaining to refund of duties of customs, according primacy to appellate remedies could not be invoked in 'self-assessed' discharge of duty liability. 12. Reversing the decisions of the Hon'ble High Court of Delhi in Union of India v. Micromax Informatics Ltd [2016 (335) ELT 446 (Del)], which relied upon the decision in Aman Medical Products Ltd v. Commissioner of Customs, Delhi [2010 (250) ELT 30 (Del)], a....
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....rocedure of assessment and the applicability was reiterated by reference to the decision in re Escorts Ltd as continuing to govern applications for refund even after amendments to section 17 of Customs Act, 1962. The judgement relies upon the definition of 'assessment' in section 2 of Customs Act, 1962 and amenability of section 128 of Customs Act, 1962 for appeal by assessee or Revenue against any order including a 'self-assessed' one. 14. In the circumstances of that specific ruling on amenability to appeal, by assessee or Revenue, arising from a grievance in 'self- assessment', the scope for such recourse by the second of the two, viz., one who bore the burden of duty, enabled by section 11 B of Central Excise Act, 1944 to claim refund was not before the Hon'ble Supreme Court in re ITC Ltd. The Hon'ble Supreme Court has consistently disapproved the perception that 'refund' was a substitute mechanism for 'appeal' owing to the mandate of appellate institutions for remedy of cause of action. 15. On the other hand, a person who has borne the burden of duty is not subjected to 'assessment' by the competent authority and the 'self' in 'self-assessment', even if it be tha....