No Refund can be claimed if amount of excess Service Tax is transferred in TRANS-1: CESTAT [Read Order]

No Refund can be claimed if amount of excess Service Tax is transferred in TRANS-1: CESTAT [Read Order]

refund - excess service tax - TRANS-1 - CESTAT - Taxscan

The Custom, Excise and Service Tax Appellate Tribunal (CESTAT), Ahmedabad Bench ruled that no refund can be claimed if the amount of excess service tax is transferred in the TRANS-1.

The appellant, Pujan Builders Engineers & Contractors during the period of April to June 2017 filed ST-3 Return. Due to cancellation of some of the invoices, the appellant has revised the ST-3 Returns. The said ST-3 Return was accepted by the department as no objection was raised.

Due to cancellation of some of the invoices the amount of service tax, relevant to those cancelled invoices were paid in excess. In the revised ST-3 Returns an amount of Rs. 1,61,203 was considered as excess service tax amount which was credited in TRANS-1 (under GST Law).

The GST department has taken objection and the amount which was transferred in TRANS-1 was reversed along with payment of interest by the appellant, thereafter they filed a refund application for excess payment made by the appellant.

By the Order-In- Original the refund was rejected on the ground of time barred by treating the relevant date as the date of payment of service tax under Section 11B of Central Excise Act, 1944.

Mr. Mrugesh Pandya, the Counsel appearing on behalf of the appellant submits that since the invoices were cancelled the amount shown in invoices actually not a service tax payable in accordance with law and hence the same is treated as deposit, therefore the limitation provided under Section 11B is not applicable.

The coram of Ramesh Nair noted that the appellant have paid the excess service tax during the quarter April to June, 2017, however, the appellant under bona fide belief transferred the said excess paid service tax into their TRANS-1 as balance in personal ledger account.

The CESTAT observed that since the appellant has transferred the amount of excess paid service tax in the TRANS-1 and same was reversed on 27.02.2019, therefore till the date up to 27.02.2019 there is no cause for claiming refund of this amount. The refund is arising only after the appellant reversed the amount on 27.02.2019. The refund was admittedly filed on 05.04.2019 i.e well within the prescribed time limit of 1 year in terms of section 11B.

The Tribunal set aside the impugned order and remand the matter to the adjudicating authority to only verify the unjust enrichment and accordingly, to dispose of the refund claim of the appellant.

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