TaxTMI 
TaxTMI 
2022 (9) TMI 9
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....eposited the same with the Central Government and no dispute is raised in this regard by the respondents. While this is so, a benefit had been granted by the Government by way of a refund of the tax paid, as a one-time premium. The exact language in terms of which the benefit was couched is as follows: Refund shall be made of all such service tax which has been collected, but which would not have been so collected, had sub-section (1) been in force at all times. 4. Thus, the amount paid as premium for the grant of long term lease of industrial plots for a period in excess of 30 years, was exempted from payment of service tax. Initially, the benefit under Notification No.41/2016-ST dated 22.09.2016 (Notification/Notification in question) was made effective from date of Notification.It was given statutory effect by insertion of Section 104 in Finance Act, 1994 in the year 2017 and the benefit was conditional made upon the service recipient having, i) in fact, received the service ii) paid the service tax during the period 01.06.2007 to 21.09.2016 and iii) filled an application seeking refund within a period of six (6) months from the date on which the Finance Bill received the as....
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....2018 and 12.02.2018, the last of the communications being filed with PIPDIC through the Pondicherry Chamber of Industries. 8. Finally, and only in response to the letter filed through the Chamber of Commerce, did PIPDIC respond on 28.06.2018 stating that the petitioner's request was misconceived as it ought to have been made before the service tax department. PIPDIC also confirmed two other factors; the first being that the service tax paid by the petitioner has been passed on to the service tax department and that no other request for refund had been received by PIPDIC from any other assessee, similar to the petitioner. 9. The rejection by PIPDIC was dated 28.06.2018 and the petitioner thereafter wrote to the Superintendent, Service Tax Department on 18.10.2018 seeking his advice on the way forward. The response from the Department sent via e-mail dated 31.10.2019 reads as follows: Please refer to your letter dated 18.10.2018 for refund of service tax paid. In this regard, please submit the ER-1 returns and Service Tax returns for the relevant period to this office immediately. 10. The initial view of the Superintendent, as conveyed on 31.10.2018, was that the petitioner was....
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.... 9. M.R.International Vs. Commissioner of Customs (Import), Mumbai [2014 (34) STR 303 (Tri.-Mumbai) 10. Anurag Enterprises Vs. Commissioner of CGST, Ghaziabad [2019 (369) ELT 1617 (Tri. - All.)] 11. Teknomec Vs. Commissioner of GST & Central Excise, Chennai [2020 (35) GSTL 135 (Tri. - Chennai)] 12. Dynamic Techno Medicals Pvt. Ltd. Vs. Commissioner of CGST & Central Excise [2021 (52) GSTL 309 (Tri. - Chennai)] 13. Commissioner of Central Excise V. AIA Engineering Ltd. (2011(2)STR 367 (Guj.)) 14. The submissions advanced on behalf of the Department are that the levy in this case has not been held to be unconstitutional, but the refund has been directed to be given only by way of a benefit to the assesses. Thus, in such a case, the petitioner cannot seek a benefit of general limitation of three years and is strictly bound by the period set out under the Notification. 15. With regard to the alternate argument, learned Standing Counsel would point out that the claim in this case has been made before PIPDIC, which is a Government Undertaking. In all cases, relied upon by the learned counsel for the petitioner, the claims had been filed before officers of the service tax d....
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....e conditions set out therein, that the assessee would become entitled to the benefit of refund. This argument is rejected. 21. The alternate submission is that the refund claim was indeed filed in time, albeit, before PIPDIC and this constitutes only a minor, condonable error. As stated earlier, it is imperative on the part of the assessee to have complied with the conditions set out under Section 104 and in this view of the matter, the order passed by the authority, impugned in this writ petition, contains no flaw. 22. To be noted however, that Section 104 does not stipulate where the claim is to be filed and to this extent, the filing of the claim before PIPDIC cannot be said to be in contravention of the provision. After all, the petitioner had been paying the amounts of service tax only to PIPDIC and hence its stand that refund must be sought from the entity to which payment had been made, can well be one legitimate, acceptable interpretation. 23. The application for refund has been filed by the petitioner before the authorities only 18.10.2018, which is, admittedly, beyond the period of six months as prescribed under Section 104 and to this extent, the impugned order cannot....