The New Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), allowed service tax refund and observed that grounds on which party may seek condonation of delay cannot change with passage of time.
The appellant,M/s Lupin Limited, is engaged in the manufacture and export of pharmaceutical products at their unit in SEZ, Pithampur, having Letter of Approval (LA) for undertaking authorised operations within SEZ at Pithampur. The head office of the appellant has been registered as Input Service Distributor (ISD). Under Notification No. 12/2013-ST dated 01.07.2013, the appellant filed two applications in Form A-4 claiming refund of service tax paid on input services received in SEZ unit.
The adjudicating authorityrejected the refund of Rs.50 lakhs being time barred. The appeal filed by the Appellant before the Commissioner (Appeals) also met the same fate.
The main argument of the learned Counsel for the Appellant is that SEZ Act, 2005 being a special statute prevails over any other Act. Referring to series of judgements, he submitted that for calculating the time limit of one year in terms of the Notification No. 12/2013, the date of ISD invoice should be considered, as the SEZ unit comes to know of the tax pertaining to Table II services only after receiving the said ISD invoices.
In rebuttal, the main thrust of the Learned Authorised Representative was on the scope of remand as the matter was remanded by this Tribunal on limited issue to ascertain the time limit after verifying the date of payment of service tax and in the event of any delay, whether the same could be condoned.
The Tribunal of PV Subba Rao, Technical Member and Binu Tamta, Judicial Member observed that “The grounds on which a party may seek condonation of delay cannot change with the passage of time, however, the same needs to be examined in the light of the law prevalent on the point, particularly in the factsof the present case where we are dealing with the special statute of beneficial nature. The Adjudicating Authority took a very conservative approach in taking the view against the condonation of delay.”
The Bench further noted that the adjudicating authority should have considered the issue of condonation of delay taking a wider and liberal approach and allowed the refund claims of the appellant.
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