TaxTMI 
TaxTMI 
2025 (6) TMI 927
X X X X Extracts X X X X
X X X X Extracts X X X X
....der contracts entered into before 01.03.2015 on which appropriate stamp duty was paid before that date. A show-cause notice was issued to them on 08.02.2017 to reject the same mentioning the defects in the said refund claim. On adjudication, the refund claim was rejected. Aggrieved by the said order, they filed appeal before the learned Commissioner(Appels) who upheld the order of the adjudicating authority and rejected their appeal. Hence, the present appeal. 3.1. At the outset, the learned advocate for the appellant has submitted that the authorities below have wrongly rejected the refund claim on various grounds. The amount of Rs.31,67,199/- was disallowed alleging that invoices issued prior to 01.04.2015 or after 29.02.2016 are not eligible to refund. He has submitted that the conditions mentioned under Section 103 of the Finance Act, 1994 are fulfilled as the services provided during the relevant period would fall under the scope of the said provision as it does not refer to invoices / purchase orders and mentions only contracts which have been entered into before 01.04.2015. The intention was to allow exemption which has been extended since 2012. He has submitted that thre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tted that the contract is a turnkey project which includes various works for which number of purchase orders were issued and the refund claim has been filed only in relation to original works. 3.2. On the issue of unjust enrichment, the learned advocate has submitted that they have enclosed a Chartered Accountant certificate which the learned Commissioner(Appeals) did not accept observing that the Chartered Accountant has merely certified the service tax paid by them which has been mentioned as expenditure in the P&L Account. He has submitted that at the time of payment of service tax since the appellant was not eligible to cenvat credit, service tax paid expensed in the P&L Account. He has submitted that the refund amount claimed has not been factored in the prices of the airport services which are regulated by Ministry of Civil Aviation. There is no case made out by the department that the appellant has passed on burden of duty to the customers by way of recovering the same from the customers. They have submitted that Hon'ble Delhi High Court in CGST, Delhi-III Vs. Delhi International Airport Ltd. [2023(74) GSTL 129 (SC)] held that UDF is ultimately determined by the Ministry ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ting authority rejected the refund claim holding that certain invoices were issued prior to 01.04.2015 and after 29.02.2016 involving a total amount of Rs.31,67,199/- i.e. beyond the period prescribed under Section 103 of Finance Act, 1994, therefore, not admissible. Also, it is observed that the scrutiny of the invoices submitted do not refer to the particular of contracts entered into prior to 01.4.2015 with the vendors. Further, it is held that the works undertaken by the contractors are not "original works" as defined under Explanation-1 of Rule 2A(1) of the Service Tax (Determination of Value Rules), 2006. Also, the adjudicating authority, verifying the documents submitted by the appellant, observed that since the service tax has been paid and claimed as refund by the appellant accounted in the P&L Account as an expenditure; therefore, the burden of duty has been passed on to others; accordingly, the refund amount is hit by the principles of unjust enrichment. 8. Section 103 of the Finance Act, 1994 which has been introduced in the Finance Act, 2016 reads as follows:- "Section 103-Special provision for exemption in certain cases relating to construction of airport ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not qualify for claiming refund under Section 103 of the Finance Act, 1994 which is restricted to the period 01.04.2015 to 29.02.2016. The argument of the appellant in this regard is that irrespective of the Point of Taxation Rules, under Section 103 of the Finance Act, no service tax has been levied or collected during the said period irrespective of the date of invoices before 01.4.2015 and after 29.2.2016. 11. To analyse the argument advanced by the learned advocate, it is relevant to read the charging Section and other provisions relating to levy and collection of service tax. Section 66B of and 68D of the Finance Act, 1994 read as: "Section 66B : Charge of service tax on and after Finance Act, 2012. - There shall be levied a tax (hereinafter referred to as the service tax) at the rate of twelve per cent on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may be prescribed." "Section 68 : Payment of service tax. - (1) Every person providing taxable service to any person shall pay service tax at the rate spe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ferred to in rule 4A of the Service Tax Rules, 1994 and shall include any document as referred to in the said rule; (e) "point of taxation" means the point in time when a service shall be deemed to have been provided; (f) ***; Date of Payment- For the purposes of these rules, "date of payment" shall be the earlier of the dates on which the payment is entered in the books of accounts or is credited to the bank account of the person liable to pay tax: Provided that- (A) the date of payment shall be the date of credit in the bank account when- (i) there is a change in effective rate of tax or when a service is taxed for the first time during the period between such entry in books of the accounts and its credit in the bank account; and (ii) the credit in the bank account is after four working days from the date when there is change in effective rate of tax or a service is taxed for the first time; and (iii) the payment is made by way of an instrument which is credited to a bank account, (B) If any rule requires determination of the time or date of payment received, the expression "date of payment" shall be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....determined periodically on the completion of an event in terms of a contract which requires the receiver of service to make any payment to service provider, the date of completion of each such event as specified in the contract shall be deemed to be the date of completion of such service. 15. Rule 4A of the Service Tax Rules stipulates for issuance of bill or invoice or the challan, which reads as follows:- 4A. Taxable service to be provided or credit to be distributed on invoice, bill or challan.- (1) Every person providing taxable service, not later than thirty days from the date of completion of] such taxable service or receipt of any payment towards the value of such taxable service, whichever is earlier, shall issue an invoice, a bill or, as the case may be, a challan signed by such person or a person authorized by him [in respect of such taxable service provided or agreed to be provided and such invoice, bill or, as the case may be, challan shall be serially numbered and shall contain the following, namely:- (i) the name, address and the registration number of such person; (ii) the name and address of the person receiving taxable service; ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ine the point of taxation based on the option as given in Point of Taxation Rules, 2011, no invoice is required to be issued to such extent. Under the 3rd proviso to the said Rule, it is prescribed that in the case of continuous supply of service, every person providing such taxable service shall issue an invoice, bill or challan, as the case may be, within thirty days of the date when each event specified in the contract, which requires the service receiver to make any payment to service provider, is completed. 15.1 Reading the aforesaid rules which are framed in pursuance to the charging Section 66B and Section 68, it is clear that the invoices raised on completion of services be considered as relevant for determining the point of rendition of service. In the present case, the vendors carry out the work as per the contracts entered prior to 01.04.2015 and invoices are raised continuously as and when the work mentioned in a purchase order for a particular work is completed. Therefore, the invoices raised before 01.04.2015 and after 29.02.2016 cannot fall within the scope of refund of service tax under Section 103 of the Finance Act, 1994 since as per the said Rules the servi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....below as well as before us has submitted that they had entered into a master contract for the scope of work to be carried out by each of the contractors / vendors. Against the said contract, purchase order for the particular work has been issued from time to time which refer to the contract number; after completion of the work mentioned in the purchase order, the vendors raised invoices against the purchase order and in some cases, the invoices do not refer to the particulars of original contract between the appellant and the vendors; however, correlating the purchase orders with invoices and relevant contracts, the appellant had submitted a statement before the authorities below as well as appended to the appeal paper book. We have perused the said statement for the entire amount of refund claimed. Once the appellant could able to corelate the contract with particular invoices linking through the individual purchase orders, we do not find any reason not to accept the same and deny refund of the service tax paid on such invoices solely on the ground that the invoices do not reflect the contracts indicating the same were entered prior to 01.04.2015, in absence of any contrary eviden....