The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Chennai bench has held that limitation is not applicable to refund retained by the service tax department having the nature of revenue deposit.
The appellant-Aadhar Stumbh Township Pvt. Ltd. was providing services under the category of “Construction service” including commercial/industrial building or civil structure, works contract service, etc. The appellant executed work for the State Government being CPWD and PWD, for which they were entitled to exemption under Mega Exemption Notification No.25/2012-ST. The appellant deposited the tax after the lapse of exemptionw.e.f. 1.4.2015. The Government extended the exemption benefit by making retrospective amendments in Notification No.25/2012-ST vide amending notification no.9/2016-ST dated 1.3.2016.
The appellant claimeda refund for the service provided to government authorities.The revenue issued Deficiency Memo after scrutinizing and required the appellant to file documents/information like Form-R, a copy of the complete work contract agreement/orders entered with the various parties, copy of the invoices with respect to the work done or to be done, copy of the audited balance sheet and income tax return for the financial year 2015-2016.The Adjudicating Authoritydoubted the filing of the refund applicationby speed post on 8.11.2016 and considered the date of filing as 5.12.2016, and held that the refund claim is barred by limitation.
It was evident that the appellant had dispatched the refund applications by speed post on 8.11.2016, which were returned by the Department by refusing to accept and the appellant had dispatched the refund application well within the period of limitation, which was expiring on 14.11.2016. It was proved that the appellant had filed the application by hand s soon after receiving back the mail with the remark “refused to accept”.
Anil Choudhary, member (judicial) observed that the refund application was filed within the limitation as prescribed under Section 102(3) of the Finance Act and the service tax deposited by the appellant has taken the changed character of revenue deposit, by operation of law as the Government of Indiaextended exemptionwith retrospective effect vide notification no.9/2016-ST read with Section 102 introduced by Finance Act, 2016.
The Tribunal while allowing the appeal set aside the impugned and directed the Adjudicating Authorityto grant refund within a period of 45 days along with interest under Section 11 BB. Shri Rajesh Chhibber appeared for the appellant and Shri Ravi Kapoor appeared for the respondent.
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