Order Date – 22 February 2023

Parties: Ms. Core Minerals Vs The Commissioner of Service Tax

Facts –

• The Appellant, Ms. Core Minerals, had filed a refund claim on 30.06.2009 under Notification No. 41/2007 dated 06.10.2007 for the period from April 2008 to March 2009.
• A Show Cause Notice dated 08.02.2011 was issued proposing to reject the refund claim made by the appellant for the reasons that the assessee’s claim was not within sixty days as per Para 2(e) of Notification No. 41/2007 ibid.

Issue –

• Whether the appellant was entitled for refund as claimed by it?

Order –

• The Tribunal relying on the decision of the Hon’ble Supreme Court in the case of M/s. Sansera Engineering Ltd. v. Deputy Commissioner, Large Tax Payer Unit, Bengaluru [2022 (382) E.L.T. 721 (S.C.)] held that Section 11B of the Act is a substantive provision in the parent statute and Rule 18 of the 2002 Rules and notification dated 6.9.2004 can be said to be a subordinate legislation. The subordinate legislation cannot override the parent statute. Subordinate legislation which is in aid of the parent statute has to be read in harmony with the parent statute.
• In view of the above guiding binding principle laid down by the Hon’ble Apex Court, it is clear that the period of limitation prescribed under Section 11B shall have to be applied since Section 11B ibid. is a substantive provision in the parent statute and the subordinate legislation in the form of Notification cannot override the parent statute.
• Hence the applicant’s claim for refund was very much in order and the denial of refund is held to be bad and contrary to the law and therefore, the impugned order is set aside.