Relevant date for refund claim of Service Tax Paid under dispute



Sunrise Immigration Consultants Pvt. Ltd. Vs CCE & ST- Chandigarh (CESTAT Chandigarh)

The facts of the case are not in dispute that a dispute between the appellant and the revenue was going on whether they were liable to pay service tax on their activity or not on export of services for the prior period. The appellant for abundant quotation paid service tax during the impugned period. Later on, the dispute was settled in favour of the appellant holding that they are not liable to pay service tax for the earlier period on 16.03.2018 and the appellant has filed refund claim within two months of the decision of this Tribunal. In that, if the relevant date for filing the refund claim is 16.03.2018 for the period in question. Therefore, in terms of the decision of the Hon’ble Apex Court in the case of Mafatlal Industries (supra), the appellant has filed refund claim within two months from the relevant date. Therefore, I hold that the refund claim filed by the appellant is within time. In those circumstances, I do not find any merit in the impugned order, the same is set-aside.

FULL TEXT OF THE CESTAT JUDGEMENT

The appellant is in appeal against the impugned order wherein their refund claim filed under Rule 5 readwith Section 11B of the Act have been rejected as time barred.

2. The facts of the case are that the appellant is a service provider and an exporter of the services. A dispute was going on between the appellant and the revenue whether they are liable to pay service tax on the services which have been exported as intermediary or not for the period prior to 01.04.2014. As the said dispute is going on, the appellant paid service tax for the period 2014-15 also. The issue was settled in favour of the appellant holding that they are not intermediaries and not liable to pay service tax on 16.03.2018 by this Tribunal. Consequent to that, the appellant filed a refund claim in March 2018 for the impugned period under Section 11B of the Act read with Rule 5 of CCR, 2004. The said refund claim was rejected as time barred as refund claim has not been filed within one year from the date of payment of service tax. Against the said order, the appellant is before me.

3. The Ld. Counsel for the appellant submits that as their liability of service tax has been declared unconstitutional, in that circumstances, provision of Section 11B of the Act are not applicable. Therefore, the time limit prescribed under Section 11B is not applicable to the facts of this case and they are entitled for refund claim. He also relied on the various judgements of the Hon’ble High Courts.

4. In alternate, he submits that as the issue between the appellant and revenue has been settled vide judgement dated 16.03.2018 passed by this Tribunal, therefore, the relevant date of filing the refund claim is to be treated as 13.03.2018 and within two months from the date, the appellant has filed refund claim. Therefore, in terms of the Section 11B of the Act also, they are entitled to claim refund of the service tax paid during the impugned period.

5. On the other hand, the Ld. AR relied on the two decisions of this Tribunal in the case of M/s New Allenberry Works Limited v. CCE & ST, Faridabad vide Final Order No. 60552 of 2021 dated 17.03.2021, M/s Indo Global Estate v. CCE Chandigarh vide Final Order No. 60335 of 2020 dated 02.03.2020. He also submits that in the light of the decision of the Hon’ble Apex Court in the case of Mafatlal Industries Ltd. vs. Union of India 1997 (89) ELT 247 (S.C.), the refund claim filed by the appellant is barred by limitation.

6. Heard the parties and considered the submissions.

7. The facts of the case are not in dispute that a dispute between the appellant and the revenue was going on whether they were liable to pay service tax on their activity or not on export of services for the prior period. The appellant for abundant quotation paid service tax during the impugned period. Later on, the dispute was settled in favour of the appellant holding that they are not liable to pay service tax for the earlier period on 16.03.2018 and the appellant has filed refund claim within two months of the decision of this Tribunal. In that, if the relevant date for filing the refund claim is 16.03.2018 for the period in question. Therefore, in terms of the decision of the Hon’ble Apex Court in the case of Mafatlal Industries (supra), the appellant has filed refund claim within two months from the relevant date. Therefore, I hold that the refund claim filed by the appellant is within time. In those circumstances, I do not find any merit in the impugned order, the same is set-aside.

8. In result, the appeal is allowed with consequential relief, if any. (Dictated & pronounced in the Court)