TaxTMI 
TaxTMI 
2022 (8) TMI 876
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....1.2018 passed by the Assistant Commissioner has been dismissed. The order dated 28.01.2018 seeks to reject the refund claim of Rs. 72,96,702/- filed by the appellant on the ground of limitation, unjust enrichment and also for violation of the provisions of section 102 (1),(2) and (3) of the Finance Act 1994 [the Finance Act] as made applicable to service tax matters by section 83 of the Finance Act. 2. The appellant is a partnership firm engaged in the construction of complex for Government, Local authority or a Governmental authority. During the period for which refund has been claimed, the appellant was providing construction service for the following projects to the Central Public Works Department [CPWD], Lucknow: (i) construction of ....
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....elf-use or the use of their employees or other persons specified in the Explanation 1 to clause 44 of section 65B of the said Act; 4. Subsequently, exemption in respect of (a), (c) and (f) of the entry no. 12 was withdrawn by amending the Notification dated 20.06.2012 by issuance of a Notification dated 01.03.2015 that was made effective from 01.04.2015. The relevant portion of the said Notification is reproduced below: 1. In the said notification,- (i) ------------------- (ii) in entry 12, items (a), (c) and (f) shall be omitted; (iii) ------------------ (iv) -------------------- 5. However, the above exemption was restored on further amendment of the Notification dated 20.06.2012, by insertion of entry no. 12A in the Notificat....
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....ection also provided for refund of service tax paid during this period to be filed within six months from the date of enactment of the Finance Bill, 2016, i.e., 14.05.2016. 8. The appellant, pursuant to the aforesaid retrospective amendment, filed a refund claim for Rs. 72,96,702/- on 05.10.2017 for the period from 01.04.2015 to 29.02.2016. The Department noticed some defects in the said refund claim and returned the same to the appellant. The appellant re-submitted the completed refund claim on 22.01.2018. 9. On scrutiny of the refund claim, the Assistant Commissioner rejected the refund claim by order dated 28.11.2018 for the following reasons: (i) Refund claim was barred by limitation as it was filed much after the limitation prescri....
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....Rs. 40,92,246/- + Rs. 3,95,347/- (Rs. 44,87,593/-) from the subsequent bills of the appellant. It would, therefore, amount to not passing on the duty incidence of tax and unjust enrichment provisions would not apply; (iv) The refund would not be hit by incidence of duty initially passed on when it was adjusted by CPWD against subsequent bills/payments. In this connection reliance was placed on the decision of Supreme Court in Commissioner of Central Excise, Madras vs. Addition & Co. Ltd. [2016 (339) ELT 177 (S.C.)]; and (v) Unjust enrichment provisions pertain to construction service and not sale of goods. Service tax is a destination based consumption tax. Hence, services are consumed at the first destination itself and no further supp....
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....ue that arises for consideration in this appeal is as to whether the refund claim was filed within the stipulated period contemplated in section 102 (1) that was introduced by Finance Bill 2016. This section provided retrospective exemption to construction service for the period commencing from 01.04.2015 to 29.02.2016. At the same time, this section also provided that refund of service tax paid during the period from 01.04.2015 to 29.02.2016 has to be filed within a period of six months from the date of enactment of the Finance Bill 2016 i.e. 14.05.2016. It is not in dispute that the refund claim was actually filed on 05.10.2017 which is beyond the period of six months contemplated under section 102 (1) of the Finance Act. 16. The decisio....