TaxTMI 
TaxTMI 
2024 (6) TMI 1516
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....ng to industrial units by way of grant of long-term lease of 30 years or more for industrial plots during the period commencing from 1st day of June 2006 and ending with 21st day of September 2016. The refund pertains to service tax collected in October 2015. The refund claim was rejected on the ground that as per section 104(3) of Finance Act, 1994, refund claim had to be filed within six months from the date on which the Finance Bill 2017 received the assent of the President. Since the assent of the President for the Finance Bill, 2017 was given on 31.3.2017, consequently in terms of section 104(3) of the Act, the refund had to be preferred by the appellant within 30.9.2017. However, the claim was preferred only on 26.10.2017 and hence was found to be time-barred. Aggrieved by the decision vide Order in Original No. 245/2017 (RE) dated 18.12.2017, the appellant preferred appeal before Commissioner (Appeals) who vide the impugned order has rejected the appeal filed by the appellant. The appellants have hence come before us assailing the impugned order. 3. No cross-objection has been filed by the Respondent- department. 4. We have heard Dr. M. Manimaran, learned counsel for t....
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.... by a State Government industrial development corporation or undertaking to industrial units by way of grant of long term lease of thirty years or more for industrial plots, shall be levied and collected during the period commencing from the 1st day of June, 2007 and ending with 21st day of September, 2016 (both days inclusive). (2) 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. (3) Notwithstanding anything contained in this Chapter, an application for claim of refund of service tax shall be made within a period of six months from the date on which the Finance Bill, 2017 receives the assent of the President." 8. We find that as per the Hon'ble Supreme Court in its landmark judgment in Rohitash Kumar & Ors. v Om Prakash Sharma & Ors [(2013) 11 SCC 451], covering the interpretation of statutes, held that a legal enactment must be interpreted in its plain and literal sense. Inconvenience or hardship is not a ground for the court to interpret the plain language of the statute differently, to give relief. The relevant portion of the judgment is ext....
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.... itself is a complete section which deals with a situation relating to the provision of an exemption and also provides for an application to claim the refund of service tax arising there under, then section 104 (3) must prevail. 8.1 We find that when two provisions of an Act are in conflict and one of them deals specifically with the matter in question while the other is of more general application, the conflict may be avoided by applying the specific provision to the exclusion of the more general one. The specific prevails over the general; it does not matter which was enacted first. The Hon'ble Supreme Court has referred to this rule of construction expressed in the maxim, generalia specialibus non derogant, which means that when there is a conflict between a general and a special provision, the latter shall prevail. [See Commissioner of Income Tax, Patiala & Ors Vs M/s Shahzada Nand & Sons & Ors. [1966 AIR 1342 / 1966 SCR (3) 379] and in State Of Gujarat & Anr. Etc. Etc vs Patel Ranjibhai Dhanbhai & Ors. (1979 AIR 1098 / 1979 SCR (3) 788)]. Further, there is nothing in the general provision, expressed or implied, indicating that section 104 of the Finance Act, 1994 is sub....
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....Technical) (SULEKHA BEEVI C.S.) Member (Judicial) ORDER PER MS. SULEKHA BEEVI C.S. I have perused the order recorded by brother Member (Technical) and would prefer to record a separate order as I disagree with the findings recorded by brother Member (Technical). 2. The facts having been narrated I do not think it necessary to go into the detail. 3. The appellant filed a refund claim for Rs. 1,86,175/- of the refund of service tax paid on development charges collected by SIPCOT. The refund claim was filed in terms of Section 104 of the Finance Act, 1994. The section has already been reproduced. As per the said section, the claim for refund has to be filed within a period of 6 months from the date on which the Finance Bill, 2017 receives the assent of the President. The said bill was assented to by the President of India on 31.03.2017. Thus, the refund claim has to be filed on or before 30.09.2017. However, the claim has been filed by the appellant only on 26.10.2017. There is a delay of less than one month in preferring the claim in terms of the period stipulated in Section 104. 4. It is submitted by the Ld. Counsel for appellant that communication dated 22.0....
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....ts / assessees, the intention of granting the exemption would have achieved its purpose. When the exemption did not mention the person who has to file the refund, the appellant had to first approach SIPCOT to get necessary documents for filing the refund claim. When the exemption / refund period is so long of about 10 years, it is indeed difficult for an assessee to obtain documents for filing a refund claim within a short period of six months. I am of the view that if there is no delay in filing the refund claim on the part of the appellant and if the claim is filed within reasonable time after receiving information from SIPCOT, the refund ought to be granted. 6. A similar view was taken by the Hon'ble Jurisdictional High Court in the case of Grand Technologies Vs Assistant Commissioner of GST & CEX Puducherry - 2022 (67) G.S.T.L. 359 (Mad.). The Hon'ble High Court observed as under : "25. The sequence of events as narrated above reveals to me that the petitioner is not guilty of any violation, except perhaps, an error in its understanding of Section 104. The decisions cited on behalf of the petitioner wherein a wrong forum has been approached by those petition....
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....e circumstances and procedures in resolving the difference of opinion between the Members of a Bench is prescribed under Section 129C(5) of the Customs Act, 1962, which reads as below: "Section 129C. Procedure of Appellate Tribunal. - (1) ----------- (2) ----------- (3) ----------- (4) ----------- (5) If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority; but if the members are equally divided, they shall state the point or points on which they differ and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members of the Appellate Tribunal and such point or points shall be decided according to the opinion of the majority of these members of the Appellate Tribunal who have heard the case, including those who first heard it." 11. The Hon'ble Gujarat High Court in the case of Colortex vs. UOI: 2006 (198) ELT 169 (Guj.) interpreting the Section 129C(5), held as under: "16. Section 129C(5) of the Act requires th....
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....er, who is assigned the case for hearing on the point or points of difference, renders his opinion, the appeal goes back to the Bench which originally heard the appeal and has to be decided in accordance with the majority opinion. This becomes absolutely clear when the concluding portion of the provision is read which talks of deciding according to the opinion of the majority of the members who have heard the case, including those who first heard it. 19. Therefore, the members who expressed dissenting opinions are bound by the statute to state the point or points of difference and make reference after making such a statement. To use the words of the learned President "an omnibus order" cannot take place of the statement on point or points of difference between the members. The entire appeal(s) cannot be referred. 20. There is one more reason as to why the legislature in its wisdom has provided for this requirement, viz., stating the point or points of difference as a pre-condition for making the reference. In a given case, and it is not unknown that, though the members may express dissenting views they might ultimately arrive at the same conclusion, or there could....
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....erence as to whether the appeals merited rejection in the light of the view recorded by Member (Technical) or the appeals merited acceptance in the order recorded by Vice-President". All that can be said about this observation is that it belies comprehension. In one breath the learned Members seek opinion of Third Member as to allowability or rejection of the appeals and also that the appeals have not been referred. Possibly the learned Members have not appreciated the true import of provision of Section 129C(5) of the Act." 12. The aforesaid principle has been followed by the same High Court in the case of Amod Stampings Pvt Ltd. vs. CC: 2013 (289) ELT 421 (Guj.). 13. Applying the principle laid down in the aforesaid judgments of the Hon'ble High Court to the reference in hand, it is clear that the appeal whether to be allowed or disallowed, has been referred instead of the exact point of difference leaving the ultimate results of the appeal to be arrived at by the Bench subsequent to the opinion of the Third Member. The jurisdiction vested with the Third Member is to decide the point or points of difference; it cannot be extended further to reframe the issues a....
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....ced in open court on 12.01. 2024) (M. AJIT KUMAR) Member (Technical) (SULEKHA BEEVI C.S.) Member (Judicial) ORDER PER: DR. D.M. MISRA 16. Heard both sides at length. 17. The points of difference referred for opinion are as follows :- POINTS OF DIFFERENCE (i) Whether the statutory time limit specified under the special provisions of Section 104 of the Finance Act, 1994 for filing refund claim, is binding on a statutory authority and will prevail over the time limit stated in the general provisions of Section 11B of the Central Excise Act, 1944. Whereby the refund claim filed beyond six months' time limit merits rejection. OR (ii) Whether the judgment of the Hon'ble High Court of Madras in Grand Technologies Vs Assistant Commissioner of GST & CEX Pondicherry [2022 (67) GSTL 359 (Mad.) covers the issues raised by the appellant, whereby the appellant is eligible for the refund and the impugned order merits to be set aside. 18. The facts, in brief, are that the appellant paid an amount of Rs. 40,29,750/- and applicable service tax of Rs. 1,86,175/- to M/s. SIPCOT, Chennai on 23.10.2015 towards differential cost of the land. By v....
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.... of September, 2016 (both days inclusive). (2) 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. (3) Notwithstanding anything contained in this Chapter, an application for claim of refund of service tax shall be made within a period of six months from the date on which the Finance Bill, 2017 receives the assent of the President." 20. On a plain reading of the said provision it is clear that a period of six months has been prescribed for refund of the service tax paid and it is different from the period of limitation prescribed under general provision of refund prescribed under Section 11B of the Central Excise Act, 1944 as applicable to service tax matters. The said Section 104 has been introduced by the Government in the Union Budget as a policy decision in extending retrospective benefit on the levy of service tax on certain services rendered during the period from June 2007 to September, 2016; it also prescribed refund of service tax which has been collected but which should not have been so collected. It is stipulated under the said provision th....
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....ultra vires to Article 14 of the Constitution of India; (ii) to read down sub- section (3) of Section 103 of the Finance Act, 2016 as mentioned in para 30(b) of the petition; (iii) to direct the respondents to compute six months' period within which the refund claim was to be filed in terms of Section 103 of the Finance Act, 1994, from the date the requisite certificate was issued by the Ministry of Shipping; (iv) directing the respondents to exclude the period from the date of application made to the Ministry of Shipping till the date of grant of requisite certificate by the Ministry of Shipping, while computing six months' period in terms of Section 103 of the Finance Act, 1994. 6.1 While considering the aforesaid reliefs and the issue whether in the facts and circumstances of the case the Learned Tribunal is justified in rejecting the refund claim of the petitioner under Section 103 of the Finance Act, 1994 on the ground that the application submitted by the petitioner claiming the refund was barred by limitation as provided under sub-section (3) of Section 103 of the Finance Act, 1994. Section 103 of the Finance Act, 1994 is required to be referred to and repro....
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....ceives the assent of Hon'ble The President. It is required to be noted that the assent of Hon'ble The President was received on 14-5-2016 and therefore, the application for claim of refund of the service tax was required to be made within a period of six months from 14-5-2016. In the present case admittedly the petitioner submitted the application for claim of refund of the service tax on 28-11-2016 i.e. much after the completion of six months' period from 14-5-2016. Thus, from the aforesaid and considering Section 103 of the Finance Act, 2014, it can be seen that a policy decision was taken by the Government to restore exemption retrospectively and allowing the refund of the service tax paid during the period between 1-4-2015 to 29-2- 2016, provided the refund application is made within a period of six months from the date on which the Finance Bill, 2016 receives the assent of Hon'ble The President. Therefore, a conditional exemption and conditional refund was provided by policy decision contained in Section 103 of the Finance Act, 2014. It cannot be disputed that but for Section 103 of the Finance Act, 2014 and the exemption being granted retrospectively, the peti....
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....vided under the Statute. Looking to the specific provision of Section 103 of the Finance Act, 2014 more particularly the specific provision contained in sub- section (3) of Section 103, even there is no scope for reading down the said provision as suggested in para 30(b) of the petition reproduced herein above. For the same reason even the decision of the Hon'ble Supreme Court in the case of Ajith Kumar (supra) relied upon by the Learned Counsel appearing on behalf of the petitioner shall not be applicable to the facts of the case on hand. At this stage it is required to be noted that in the present case the petitioner submitted the application to the Ministry of Shipping for issuance of the necessary certificate in accordance with the Notification No. 9/2016-S.T., dated 1-3-2016 for the purpose of exemption of service tax on port project sanctioned prior to 1-3- 2015 only on 15-11-2016 (Page 213 of the compilation). At this stage it is required to be noted that even the petitioner asked the Gujarat Maritime Board to issue the certificate as required which thereafter was required to be sent to the Ministry of Shipping for its verification and issuance of the required c....
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.... Member Bench of the Madras High Court rendered the judgment in the case of Grand Technologies (supra) in exercise of the writ jurisdiction conferred on the High Court in terms of Article 226 of the Constitution of India and moulded the relief accordingly, as is evident from the observation at para 24 of the said judgment, which is reproduced below :- "24. However, the power endowed upon this Court in terms of Article 226 of the Constitution of India is substantial and wide, facilitating one to adopt a holistic perspective of all issues in arriving at a decision. Thus, in deciding whether the petitioner's claim before PIPDIC could be considered as compliance of the condition under Section 104, I take succour from the following facts : (i) Section 104 was itself was enacted as a beneficial provision method. Legislature intended, in principle, that there shall be no levy of service tax in respect of services relating to grant of long term lease in excess of 30 years. (ii) Admittedly, the transaction qua the petitioner and PIPDIC falls squarely within the factual and legal matrices envisaged under Section 104 and on this score, there is no dispute. ....