TaxTMI 
TaxTMI 
2025 (12) TMI 515
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....SIIDC, Delhi 27,69,995 3 NBCC Ltd. (CAPF, Greater Noida, UP) 4,37,515 Total 1,33,50,411 Submissions of the appellant 2. Learned counsel for the appellant made the following submissions: (i) The appellant was providing construction services to commercial and industrial buildings including Government buildings and had been paying service tax on the services. (ii) On 14th May 2016, section 102 was introduced in the Finance Act, 1994 [Finance Act] with retrospective effect from 1 April 2015 exempting the construction of Government buildings for which contracts were entered into prior to 1 March 2015. The section further provided that if service tax was paid, notwithstanding anything contained in any other law, refund shall be made if the refund application is made within 6 months. (iii) The appellant made an application and the Assistant Commissioner had initially rejected the refund by order dated 15 January 2018. On appeal, the Commissioner (Appeals) remanded the matter in pursuance of which the Assistant Commissioner passed the OIO partly allowing the refund and partly rejecting it on the ground of unjust enrichment. On ap....
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....d by the CPWD. Any NOC issued by CPWD cannot replace the statutory provision to avoid unjust enrichment. (v) Similar is the case with Project DSIIDC, Delhi and NBCC Ltd. (vi) Therefore, there is no force in the appeal which may be dismissed and the impugned order may be upheld. Findings 4. We have considered the submissions advanced by both sides and perused the records. Section 102 of the Finance Act reads as follows: "SECTION 102. Special provision for exemption in certain cases relating to construction of Government buildings. (1) Notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the period commencing from the 1st day of April, 2015 and ending with the 29th day of February, 2016 (both days inclusive), in respect of taxable services provided to the Government, a local authority or a Governmental authority, by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of-- (a) a civil structure or any other original works meant predominantly for use other than for commerce, industry or any other business or p....
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.... refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act : Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant ....
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....he notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette. Explanation. - For the purposes of this section, - (A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) "relevant date" means, - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such g....
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....he consumer welfare fund unless the claimant produces evidence that it has not been passed on to anyone else. Further, if the buyer had borne the duty, he can claim refund if he had not passed on the burden to anyone else. When made applicable to service tax, the service recipient must be treated as the buyer. 7. As far as the refunds under section 102 of the Finance Act are concerned, a special provision has been made that refund applications can be made within six months from the date on which the Finance Bill 2016 received assent of the President of India. No other changes were made to the refund proceedings under section 11B including any changes to the provisions of unjust enrichment. 8. But for the special limitation prescribed under section 102, all provisions of section 11B would apply to refunds under section 102 of Finance Act also. These include the provision relating to unjust enrichment. In a nutshell, if a manufacturer pays excess excise duty or a service provider pays excess service tax, passes it on to the buyer of goods or the service recipient and claims a refund afterwards, he will end up getting unjustly enriched. A mechanism has been built into section 11....
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....a nine-member Constitutional Bench of Supreme Court in Mafatlal Industries Ltd. Needless to say that and any NOC issued by the officers cannot prevail over the law passed by the Parliament. In fact, the NOCs issued by the officers have no relevance in the law. 13. Learned counsel for the appellant relied on the orders passed by a learned Single Member in S N Atiwadkar and similar orders passed by other Single Member Benches in Lakshmi Engineers,, M/s. Ravindra Kumar Gupta, AP Enterprises, Shree Construction Company and Federation of Andhra Pradesh Chamber of Commerce and Industry. 14. We respectfully disagree with these decisions. All these decisions having been passed by learned Single Members do not bind this Division Bench. It is our considered view that Tribunal, being a creation of law, cannot go beyond the law itself. When the Parliament prescribed a procedure under Section 11B to avoid unjust enrichment, it is not open to anyone including this Tribunal to create an alternative mechanism of avoiding unjust enrichment. It is even more so, considering that this provision of the Act made by the Parliament was examined and upheld by a nine-member Constitution Bench of Supre....