TaxTMI 
TaxTMI 
2026 (8) TMI 1219
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....reement expressly provides that the mobilisation advance would be adjusted progressively only upon achievement of the agreed contractual milestones. 2.3 Subsequently the contract was terminated on 7th May 2014 prior to commencement and the entire advance was recovered by NTPC through encashment of bank guarantee from HSBC for default and non-performance of service. 2.4 Thereafter, the appellant filed the refund claim on 08.04.2015. The service tax was paid on advance received from the customers, which was returned to NTPC. A deficiency memo was issued on 25.05.2015 to the appellant. The appellant has clarified the said deficiency on 24.06.2015 by their submissions made. 2.5 Thereafter, a show-cause notice was issued on 04.01.2016 for rejection of their refund claim. 2.6 The appellant filed a reply to the show-cause notice, but refund claim was rejected on 02.04.2016. 2.7 The appellant filed an appeal against the said order before the ld. Commissioner (Appeals), who dismissed their appeal. 2.8 Against the said order, the appellant has filed this appeal before this Tribunal. 3. The ld. Counsel for the appellant submits that the refund claim has been rejected on t....
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....as in force and governed the determination of the point of taxation in cases of continuous supply of service. 3.6 From the plain reading of Rule 6 of the Point of Taxation Rules, 2011, makes it abundantly clear that the said Rule merely prescribes the point in time, at which service tax becomes payable in respect of an amount received towards the provision of taxable service. The Rule neither creates the levy of service nor enlarges the scope of taxable consideration under Section 66 of the Finance Act, 1994 and Rule 6 of the Point of Taxation Rules, 2011, makes it evident that Rule 6 merely determines the point in time at which service tax becomes payable and does not itself create the charge of tax. The charging provision under the Finance Act, 1994, is contained exclusively in Section 66, which authorizes the levy of service tax only on the value of taxable services. 3.7 It is further submitted that the amount of Rs.56 Crores received from NTPC under the Project Agreement was merely a contractual advance secured by an unconditional Bank Guarantee and was consistently reflected as a Current Liability in the audited books of account of the Appellant. The said amount was neve....
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..../2022-GST dated 27.12.2022 wherein it is held that the cancellation of the underlying contract constitutes the relevant event giving rise to the refund claim. 3.12 He, therefore, prays that the impugned order is to be set aside and the refund claim be allowed. 4. The ld.A.R. for the Revenue submits that as the appellant has paid the service tax on advance received by them as service tax in the year, 2011, the refund claim has been filed on 08.05.2014, which is beyond the period prescribed under Section 11B of the Central Excise Act, 1944, therefore, they are not entitled to take the refund claim thereof. Accordingly, the impugned order is to be upheld. 5. Heard both the parties and considered the submissions. 6. We find that in this case the facts are not in dispute that the appellant has paid the service tax on advance received by them under contractual obligation on 5.11.2011 and the said contract was terminated on 07.05.2014 and advance given the appellant was recovered by way of encashment of the Bank Guarantee given by the appellant. Therefore, whole of the service tax paid by the appellant is borne by themselves and they have filed refund claim on 08.04.2015, whic....
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....e respondent is entitled for the refund claim without invoking the provisions of Section 11B of the Central Excise Act, 1944. Accordingly, the respondents is entitled for the refund claim hence, the impugned order is upheld. Appeal filed by the Revenue is rejected." 7. Further, this Tribunal, in the case of Concord India Pvt.Ltd. Vs. Commissioner of Service Tax, Bangalore vide Final Order No.20046/2018 dated 11.01.2018, has observed as under : "5. After considering the submissions of both the parties and perusal of material on record, I find that the findings of the Commissioner (Appeals) that the claim is barred by limitation is not sustainable in law as the lower authority has already held that the refund claim is not barred by limitation by relying upon the decision of the Karnataka High court in the case of KVR Construction cited supra. Further I find that the Revenue has not challenged the finding of the original authority that the refund is not barred by limitation. Further I also find that the appellant's case is squarely covered by Notification No.25/2012 which exempts service tax levy on advocate services received by business entities with turnover of less than....
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....ss in individual capacity would be able to afford the services of individual advocates or a partnership firm of advocates. In such circumstances and when the term business entity has been understood to include a individual he will not be deprived of quality legal services if his turnover in the preceding financial year is within the limits specified above. 62. The next Notification is No. 30/2012, dated 20th June, 2012 and that while superseding the earlier Notifications of 31st December, 2004 and 17th March, 2012 proceeds to notify the taxable service and the extent of Service Tax payable thereon by the person liable to pay Service Tax for the purpose of Section 68(2). Now, the taxable services provided or agreed to be provided by an Arbitral Tribunal or an individual advocate or a firm of advocates by way of support services to any business entity located in the taxable territory are brought within the net and stand covered by the Finance Act. However, this Notification does not touch, far from superseding the Mega Notification No. 25/2012 of the same date, namely, 20th June, 2012. All that it states is that the taxable services provided or agreed to be provided by an Ar....
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.... in them by the British Government. Some of these Regulations were touching arbitration. Bachawat gives arbitration as a mode for settlement of disputes between the parties, has a tradition in India. It has a social purpose to fulfil today. It has a great urgency today when there has been an explosion of litigations in the Co the of law established by the sovereign power. New rights created, or awareness of these rights, the erosion of faith in the intrinsic sense of fairness of men, intolerant and uncompromising attitudes are all the factors which block our courts. The courts are full of litigations, which are pending for long time. Therefore, it should be the endeavour of those who are interested in the administration of justice to help settlement by arbitration, if possible. It has also a social efficacy being the decision by the consent of the parties. It has greater scope of acceptance today when there is a certain erosion of faith in view of the failure to appreciating the functions of the courts of law. It has also the advantage of not quickness of decision but of simplicity of procedure. But in proceedings of arbitration these must be adherence to justice, equity, law and f....
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....of maintainability of Writ Petition. Section 11B of the Central Excise Act reads as under : "11B. Claims for refund of duty : (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the document referred to in Section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person." 18. From the reading of the above Section, it refers to claim for refund of duty of excise only, it does not refer to any other amounts collected without authority of law. In the case on hand, admittedly, the amount sought for as refund was the amount paid under mistaken notion which even according to the department was not liable to be paid. 19. According to the appellant, the very fac....
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.... the petitioner, which was initially not payable by them. Therefore, mere nomenclature will not be an embargo on the right of the petitioner to demand refund of payment made by them under mistaken notion. 20. In the case of Hind Agro Industries Ltd. v. Commissioner of Customs reported in 2008 (221) E.L.T. 336 (Del.), it was the case where cess amount was paid under protest by the appellants. In that case after referring to Mafatlal Industries case (supra), the lordships of Delhi High Court have held that in Mafatlal Industries case, Hon'ble Supreme Court was dealing with the case of refund of duty payable within the meaning of either the Central Excises and Salt Act, 1944 or the Customs Act, 1962 as the case may be, wherein they have held that all claims for refund ought to be filed only in accordance with the Customs Act. Therefore, it did not include the payment made under some other enactment, which for some reason had erroneously been made to the Customs authorities. Even otherwise by referring to paragraph 137 of Mafatlal Industries case, one has to see whether the amount claimed is unconstitutional and outside the provisions of Section 11B of the Act. 21. In....
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....nt. By any stretch of imagination, it will not amount to duty of excise to attract Section 11B. Therefore, it is outside the purview of Section 11B of the Act. 24. The learned Counsel for the appellant has also contended that when the order of refund was rejected, the respondent could have approached this Court instead of filing the appeal choosing a wrong forum, could not be a deficit coming in the way to claim refund. 25. However, the petitioner has not approached the Tribunal after the order passed by 1st appellate authority and they have approached this Court. Therefore, even the provisions of Section 35B(1)(b) would not be applicable. From the facts of the case as discussed herein above, it emerges that petitioner has approached this Court contending that Section 11B is not applicable as there was no duty cast on them to pay "service tax" and they have paid such amount under mistaken notion. Viewed from nay angle, we are of the opinion that the learned Single Judge was justified in setting aside that portion of the order which rejected the claim of refund and accordingly same is confirmed. 26. Accordingly, the appeals are dismissed. The concerned app....