Service tax – Cestat Mumbai: Refund can be filed by the recipient who has borne the incidence of tax and relevant date to file refund would fall within the definition of sub-clause (f) of Section 11(5)(B) of the Central Excise Act, for which the date of payment is material – Appeal allowed [Order attached]
Order date – 13 September 2022
- The Appellant, M/s JSW Dharamtar Port Pvt. Ltd. was collected and deposited the Service Tax in respect of construction service pertaining to port rendered to appellant that was originally exempted from payment of Service Tax vide Mega exemption Notification No. 25/2012-ST at Sr. No. 14(a), but was temporarily withdrawn.
- Inadvertently, Appellant continued to pay the Service Tax collected and paid through its service providers M/s. Paresh and after realising that no Service Tax was infect payable from the period between 01.04.2015 to 29.02.2016 that was refundable within six months of the enactment of amended Finance Act, 2016 as per proposal made in the Union Budget, 2016 and complete exemption was granted w.e.f. 01.03.2016.
- Appellant sought for refund through its application dated 27.06.2017 but was rejected on the ground that only M/s. Paresh, who deposited the tax, can file the refund application and the refund up to 29.02.2016 was hit by the limitation of six months prescribed in the amended Finance Act, 2016.
- Whether the appellant is entitled to refund which was hit by the limitation?
- The Tribunal perused the relevant provision contained in Rule 11B of Central Excise Act. A bare reading of subclause (e) would clearly reveal that in case of a person, other than the manufacturer, the date of purchase of goods would be the relevant date to determine the period of limitation.
- In the instant case Appellant had not purchased any goods but availed services and it had borne the incidence of tax. Hence for the purpose of determination of limitation the relevant date for the Appellant would fall within the definition of sub-clause (f) of Section 11(5)(B) of the Central Excise Act, for which the date of payment is material. Therefore, the appellant is entitled to get refund against all those tax paid erroneously, whose challans were showing the date of payment within one year from the date of filing of refund application on dated 27.06.2017.
- The appeal is allowed in part and directed the Respondent-Department to recalculate the refund amount in two months thereafter.