TaxTMI 
TaxTMI 
2024 (3) TMI 501
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....xclusive usage of parking spaces in the project, in favour of the said allottee, through an allotment letter dated 20.07.2015 for total sale consideration of Rs.4,44,98,237/- plus service tax as per applicable rates. That, against the above amount receivable, the Appellant received Rs.3,00,00,000/- and since the said amount was inclusive of service tax, hence the Appellant paid service tax to the tune of Rs.12,09,213/- by debiting its Cenvat credit ledger on 30.07.2015. That, subsequently the allottee through her letter dated 15.11.2017, expressed her inability to pay balance amount of the total sale consideration and service tax, and thus requested the Appellant to cancel the booking of the impugned unit i.e. Unit 1 (B) in the project, and to make refund of Rs.3,00,00,000/- without any deductions whatsoever. Accordingly, the Appellant refunded the said amount on 01.02.2018, vide NEFT to her. That, the allottee acknowledged receipt of the refund of Rs.3,00,00,000/- and gave a No Dues Certificate. That, since the transaction of sale/provisional allotment entered into with the impugned allottee was cancelled and the amount involved was repaid/refunded back to the allottee by the Appe....
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....visions of Section 11B and clause (f) of the explanation B to Section 11B and the same have been considered by the Hon'ble High Court of Gujrat in the case of Indo-Nippon Chemicals Co. Ltd. vs. Union of India, as reported at 2002 (2) TMI 136 - Gujrat High Court. Their Lordships while interpreting the provisions of clause (f) to explanation B of Section 11B held as under:- "35. For the purpose of commencement of limitation under Clause (f) of Explanation (B) to Section 11B of the Act, even though reversal of Modvat credit was done in February/March 1995, since the mistake was discovered only in November, 1995 when the Public Notice clarifying the legal position came to the knowledge of the petitioner, the period of limitation for the purpose of refund application would commence from November, 1995 i.e. on discovery of mutual mistake of the parties. In the circumstances, we hold that provisions of Section 11B of the Act are attracted to the refund application filed by the Petitioner. On the question of limitation, our conclusion is that since the claim is based on discovery of mistake, the period of limitation would not commence from the date of reversal of Modvat credit, but f....
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....ned whether the Tribunal would have the jurisdiction to entertain an appeal filed against an order passed under sub-section (3) of section 142 of the CGST Act. 44. Under sub-section (3) of section 142 of the CGST Act, the claim for refund of any amount of CENVAT credit has to be disposed of in accordance with the provisions of the existing law. The existing law would be Chapter V of the Finance Act and the Central Excise Act. If an application for refund of CENVAT credit had been filed at a point of time when the CGST Act had not been enacted, an appeal would lie before the Tribunal against an order passed on the application filed for refund of CENVAT credit. What has to be seen is whether an appeal can be filed before the Tribunal after the coming into force of the CGST Act against an order passed under sub-section (3) of section 142 of the CGST Act. In view of the specific provisions of sub-section (3) of section 142 of the CGST Act, every claim for refund after 01.07.2017 has to be disposed of in accordance with the provisions of the existing law i.e. Chapter V of the Finance Act and the Central Excise Act. This would mean that the appellate provisions would continue to remain....
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....tion (3) of section 142 of the CGST Act and against this order an appeal will lie to the Tribunal. 50. The reference is, accordingly, answered in the following manner: An appeal would lie to the Customs, Excise & Service Tax Appellate Tribunal against an order passed under section 142 of the Central Goods and Services Tax Act, 2017. 51. The papers may now be placed before the Division Bench of the Tribunal for deciding the appeal." Therefore, as held by the Larger Bench, this Tribunal exercises jurisdiction over issues of refund claims filed under Section 142 of the CGST Act, 2017. In the present matters, the refund applications had been filed under Section 11B of the Central Excise Act, 1944 read with Section 142(5) of the CGST Act, 2017. 11. At the outset, I observe that the two conditions, which are sacrosanct to any refund application, are that (i) such refund application ought to be filed within the prescribed period of limitation and (ii) the incidence of duty should not have been passed to any other person by the applicant. 12. I find that the aspect of limitation in the facts and circumstances of the present matters, has already been decided by this Tribunal in....
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....fied in the Finance Act, 1994 as amended from time to time then certainly the assessee is liable to pay, but when no such service has been provided then the assessee cannot be saddled with any such tax and in that case the amount deposited by the assessee with the exchequer will be considered as merely a 'deposit' and keeping of the said amount by the Department is violative of Article 265 of the Constitution of India which specifically provides that "No tax shall be levied or collected except by authority of law." Since Service Tax, in issue, received by the concerned authority is not backed by any authority of law, the Department has no authority to retain the same. Buyer booked the flat with the Appellant and paid some consideration. The Appellant as a law abiding citizen, entered the same in their books of account and paid the applicable service tax on it after collecting it from the buyer. But when the buyer cancelled the said booking on which service tax has been paid and the Appellant returned the booking amount along with service tax collected, then where is the question of providing any service by the Appellant to that customer. The cancellation of booking coupled with the....