TaxTMI 
TaxTMI 
2025 (8) TMI 1469
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....x department for providing services as that of construction service other than the construction of residential complex and works contract services. The appellant had to develop a commercial project under the name of "Wave One" comprising of office space and retail space for New Okhla Industrial Development Authority NOIDA on the land allotted by the said authority. In order to discharge its service tax liability, the appellant had charged service tax on the invoices/RA bills so raised to the customers and deposited the amount with the Government exchequer. However, during March 2018, various customers cancelled their bookings resulting into cancellation of the respective demand notes/RA bills. The corresponding credit notes were issued, due to this event which occurred after coming into effect of Central Goods and Service Tax Act, 2017 that the appellant filed refund claim on 30th March 2022 for refund of the amount of service tax of Rs. 16,93,099/- as was paid by them before the said cancellation. However, following deficiencies were observed: (a) The appellant has not submitted the said refund claim within one year as per Section 11B of the Central Excise Act, 1944 in re....
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....51-CESTAT New Delhi; (iii) M/s Credence Property Developers Pvt. Ltd. Vs. Commissioner of CGST & Central Excise, Mumbai East 2023 (1) TMI 252 - CESTAT Mumbai; (iv) M/s Uppa Chadha Hitech Developers Pvt. Ltd. Vs. Commissioner (Appeals-1), CGST & Central Excise, Delhi Dated 20.01.2024 CESTAT New Delhi; (v) M/s Wave One Pvt. Ltd. Vs. Commissioner CGST & Central Excise, New Delhi Dated 31.10.2023 CESTAT New Delhi. 3. While rebutting these submissions, learned Authorized Representative for the department has submitted that refund claim has not been rejected merely being barred by time but also for the reason that the appellant has been unjustly enriched. It is submitted that since the refund claim has been filed in terms of Section 11B of Central Excise Act it should have been filed within one year of the payment of service tax. Apparently, the claim was filed much later hence there is no infirmity rejecting the claim on the ground of limitation. Learned Departmental Representative has also relied upon the decision of Hon'ble Apex Court in the case of ITC Ltd. Vs. Commissioner of Central Excise, Kolkata 2019 (368) ELT 265 (SC) and BT (India) Pvt. Ltd.....
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....e original adjudicating authority three issues have been decided in favour of the appellant - assessee holding that the claim has been filed before the correct jurisdictional authority, the appellant is very much eligible for the refund and that no issue of unjust enrichment is involved in this case. The refund claim has still been rejected only on one issue i.e. of time bar holding that the refund claim has not been filed within one year as is required under section 11B of the erstwhile Central Excise Act. Those findings have fully been endorsed and upheld by the Commissioner (Appeals) vide the impugned order under challenge. In the light of these observations, the narrow point of adjudication for the present appeal is "Whether the refund claim in the given set of circumstances where it has been filed after introduction of CGST Act gets hit by principle of limitation." 7. For the purpose, the relevant provision of the CGST Act section 142 (5) is foremost perused under which the impugned claim has been filed. It reads as follows:- (5) Every claim filed by a person after the appointed day for refund of tax paid under the existing law in respect of services not p....
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....ment. In view of said non-obstante clause Section 11B(1) of Central Excise Act cannot be the criteria for rejecting refund claim post introduction of CGST Act (Section 142 thereof). 11. Coming to the plea raised on behalf of the Department as has been mentioned in the order under challenge holding that since the amount was paid to the Government as service tax it is section 11 B of CEA, having a prescribed time limit, only shall be applicable. I observe that the tax liability arises towards an amount received for providing a service in the case when the service is either provided or is to be provided. In the present case from the apparent admission for the fact that the agreement for providing service was got cancelled at the stage when no service was yet provided, there remains no scope for any service to be provided in future. Thus, there remains no occasion for any tax liability on the appellant and no authority with the Government to collect such an amount. In view thereof and in view of Article 365 of Constitution of India, the authority cannot retain the said amount. I draw my support from the decision of Hon'ble Supreme Court in the case of Collector of Central Excise, Ch....