Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/CASE LAW/2015-16/2961

Whether refund will be allowed on service tax paid by mistake when refund is beyond the statutory period of limitation.

Case:- ASSISTANT COMMR. OF S.T., CHENNAI VersusNATARAJ AND VENKAT ASSOCIATES
 
Citation:- 2015 (40) S.T.R. 31 (Mad.)
 
Brief facts:- Aggrieved by the order of the learned single Judge dated 20-10-2009 passed in W.P. No. 15357 of 2009 [2010 (249)E.L.T.337 (Mad.)] wherein and by which the writ petition filed seeking for direction to the authorities for refund of the Service Tax, was allowed, the Department has come forward with the present appeal.
The respondent firm, which is rendering architectural services, paid a sum of Rs. 8,67,800/- on 4-7-2005 towards Service Tax for the service rendered for the construction of building in Sri Lanka. Subsequently, it made a claim for refund on 20-9-2006 for which a show cause notice dated 5-10-2006 was issued followed by Order-in-Original dated 23-5-2007 rejecting the claim as time barred and also on the ground that the claim was not in proper format. The appeal filed before the Commissioner of Central Excise (Appeals) was also rejected by order dated 21-11-2008. Hence, the respondent filed Writ Petition seeking for direction to the authorities to refund the amount of Rs. 8,67,800/- along with interest.
The learned single Judge, on consideration of the materials available on record and after hearing the rival submissions, while holding that the claim made for refund was beyond the period of limitation, allowed the writ petition directing the authorities to make refund of the amount payable to the writ petitioner within a period of eight weeks from the date of receipt of a copy of the order. Aggrieved by the said order, the present writ appeal has been preferred by the Department.
 
Appellant’s contention:- Learned Counsel representing the Department would submit that even if the tax was collected without the authority of law, claim for refund cannot be entertained beyond the period specified in Section 11B of the Central Excise Act, 1944. He would further submit that the respondent has not satisfactorily explained the delay in filing the refund application on its part. It is his further submission that the respondent has chosen to approach this Court without exhausting the alternate remedy available by way of filing an appeal before the CESTAT. According to him, the order of the learned Judge needs to be interfered with.
 
Respondent’s contention:-The only point urged by the learned Senior Counsel appearing for the respondent is that the amount paid is not a payment of Service Tax but it is a deposit from the assessee and hence, the same would have to be refunded irrespective of the bar of limitation provided under Section 11B of the Act.
 
Reasoning of judgment:-Heard the learned Counsel representing the Department and the learned Senior Counsel appearing for the respondent and perused the records.
The fact remains that the respondent-assessee filed the refund claim for the Service Tax paid in respect of service provided to M/s. HSBC Electronic Data processing Lanka Pvt. Ltd. on the grounds that the said service is to be considered as export of service.
Admittedly, the date of payment was 4-7-2005 and claim for refund was made on 20-9-2006. It is also not disputed that for claiming rebate of Service Tax paid on taxable service exported, the conditions, limitations and procedures prescribed under Notification No. 11/2005-S.T. dated 19-4-2005 should be followed.
From the materials available on record, it is seen that the amounts were credited to the Revenue under the Head of Account “0044-Service Tax” through TR-6 challans, which are purported for payment of Service Tax only and as such, the claim of the respondent that the payment was only deposit and not Service Tax, cannot be sustained. Further, a tax, be it, direct or indirect, is intended for immediate expenditure for the common good of the state and it would be unjust to require its repayment after it has been in whole or in part expended, which would often be the case in most payment of such sort. Therefore, it is impracticable for the authorities to refund applications that are filed beyond time even it is paid under a mistake of law. Therefore, the authorities have rightly rejected the claim of the respondent and this aspect has not been taken note of by the learned single Judge.
Moreover, even the learned single Judge, immediately after narrating the facts, in paragraph 7 of the order has clearly pointed out with regard to the delay and the same is extracted below :-
“Unfortunately, the date of payment, in this case, was admittedly 4-7-2005. The date on which a claim for refund was made, was 20-9-2006, which was obviously beyond the period of limitation. Therefore, at the outset, the rejection of the claim appears to be in tune with the statutory provisions.”
In view of the above, in the facts and circumstances of the case, they are of the considered opinion that respondent is not entitled for refund of the claim and the order of the learned Single Judge needs to be interfered with. Accordingly, the writ Appeal stands allowed and the order of the learned Single Judge is set aside. No costs. Consequently, connected Miscellaneous Petition is closed.
 
Decision:- Appeal allowed.
 
Comment:-The analogy of the case is that Architectural services, provided for construction of building in Sri Lanka. This is export of service. In this regard assessee has files refund claim.  Refund claim filed by the assessee is beyond period of limitation. Said amount paid by assessee is under Head of Account “0044-Service Tax” through TR-6 challan meant for payment of service tax. Contention of assessee is to be a deposit, not sustainable. Refund claims filed beyond statutory period of limitation, not tenable even if tax is paid under a mistake of law. Refund is not admissible.

Prepared by:- Monika Tak

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com