The Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) upheld the order of the Commissioner (Appeals) in upholding the order passed by the Assistant Commissioner rejecting the application filed by the appellant for a refund of service tax on the ground that it was not filed within the time stipulated.
The appellant, JPG Construction Pvt Ltd. sought the quashing of the order dated January 18, 2019, passed by the Commissioner (Appeals), Central Tax and GST Delhi, by which the appeal has been dismissed and the order dated August 31, 2018, passed by the Assistant Commissioner rejecting the refund claim of Rs. 64,68,025/- filed by the appellant under the provisions of section 102 of the Finance Act, 1994, has been upheld.
The services provided by the appellant to governmental authority or local authority for construction, erection, commissioning, installation, etc. were exempted from the levy of service tax by Notification dated June 20, 2012. This exemption was however withdrawn by Notification dated March 01, 2015, which was made effective from April 01, 2015.
The appellant claims that upon withdrawal of this exemption, it paid service tax during the period commencing April 01, 2015, up to February 29, 2016, on the services provided by the appellant to government authorities or local authorities.
The Assistant Commissioner and the Commissioner (Appeals) have considered whether the online refund request said to have been filed by the appellant through ACES could be considered for determining whether the application was filed within time.
A finding has been recorded that the ACES portal was accessed but the request was not found to be pending and even the helpline facility of the ACES portal that was accessed did not confirm the status of such a request. The Commissioner (Appeals) has also noticed that the online print out that was submitted by the appellant also showed “off-line” against the item “off-line”.
The coram headed by President Justice Dilip Gupta noted that though an attempt was made by the appellant to submit the application online the process that was required to be undertaken for making an application online was not complied with as even the regulation was not done.
The Tribunal held that the application cannot be treated to have been filed on time. If there was any difficulty in submitting the application, the appellant could have sought the help of the help desk but the appellant has not stated that he made an attempt to seek help.
The CESTAT said that the appellant, therefore, cannot contend that the online application was actually made on October 13, 2016 as there is nothing on the record to substantiate that such an application was actually filed.
It was noted by the Tribunal that the appellant filed a hard copy of the application only on December 20, 2016, in the office of the Assistant Commissioner and the records do indicate that correspondence did take place between the Department and the appellant in connection with this application. This Application was filed beyond the period prescribed in subsection (3) of section 102 of the Finance Act.
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