Service Tax
TRT-2025-
Cestat Kolkata
Date:-02-08-22
In:-
Issue Favourable to Tax Payer ?:- 0
Order date – 02 August 2022
Facts
- The appellant, M/s. Larsen & Toubro Ltd. is engaged in the business of engineering, construction, manufacturing, and financial services.
- The Appellant made payment of Service tax amounting to Rs.42,16,666/- on a provisional basis for the months of January 2013, February 2013 and March 2013. However, on receipt of the certified invoice, the actual Service tax liability was ascertained as Rs.35,85,977/-, hence there was excess payment of Service Tax amounting to Rs.6,30,689/- for the month of July 2013.
- Section 68 of the Finance Act, 1994 read with Rule 6(1) of Service Tax Rules, 1994 mandates payment of Service Tax by 6th of the following calendar month, therefore, in order to avoid any delay in payment of duty, the Appellant discharged its tax liability. Thus the payment made for the month of July 2013 exceeded the Service Tax liability by Rs.6,30,689/-.
- Appellant under Section 11B of the Central Excise Act read with Section 83 of the Finance Act filed a refund application 06.08.2014.
- A show cause notice was issued against the appellant for contravention of the Finance Act, 1994 and Service Tax Rules, 1994.
- The adjudicating authority rejected the claim of the appellant on the ground that the suit is barred by the limitation of time.
- Aggrieved, the appellant filed for an appeal.
Issue
- Whether the adjudicating authority is justified in denying the right of claim for a refund for the amount paid as service tax on the grounds of limitation under Section 11B of the Central Excise Act, 1944 and Section 83 of the Finance Act, 1994?
Order
- The authorities observed that the appellant is s engaged in a continuous supply of works contract and it initially raised provisional invoices on its contractor because such invoice requires approval at multiple levels which delays the finalization of invoice.
- The authorities referred to the case of Tarun Prasad Chatterjee Vs. Dinanath Sharma, were supreme court held that Section 9 of the General Clauses Act, 1897 gives statutory recognition to the well-established principle applicable to the construction of statutes that ordinarily in computing the period of time preserved, the rule observed is to exclude the first and include the last day.
- The tribunal held that the period of limitation should be calculated as per the General Clauses Act and therefore they hold that the refund application has been filed within time and rejection of refund is incorrect and needs to be set aside.
- The impugned orders are set aside and the Appeal filed by the Appellant is allowed with consequential relief.
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