Custom, Excise & Service Tax Tribunal
Purvanchal Construction Works Pvt Ltd vs Delhi East on 13 September, 2023
Author: Dilip Gupta
Bench: Dilip Gupta
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH
COURT NO. I
SERVICE TAX APPEAL NO 51700 OF 2018
[Arising out of the Order-in-Appeal No. 66-67/ST/DLH/2018 dated 05/04/2018
passed by The Commissioner (Appeals - I), CGST & Central Excise, New Delhi.]
M/s Purvanchal Construction Works Pvt. Ltd., Appellant
LSC, A-7, 2nd Floor, Purvanchal Plaza,
Mayur Vihar Phase - II,
New Delhi - 110 091.
VERSUS
Commissioner (Appeals - I), Respondent
CGST & Central Excise, Room No. 134, C.R. Building, I.P. Estate, New Delhi.
WITH SERVICE TAX APPEAL NO. 51701 OF 2018 [Arising out of the Order-in-Appeal No. 66-67/ST/DLH/2018 dated 05/04/2018 passed by The Commissioner (Appeals - I), CGST & Central Excise, New Delhi.] M/s Purvanchal Construction Works Pvt. Ltd., Appellant LSC, A-7, 2nd Floor, Purvanchal Plaza, Mayur Vihar Phase - II, New Delhi - 110 091.
VERSUS
Commissioner (Appeals - I), Respondent
CGST & Central Excise,
Room No. 134, C.R. Building, I.P. Estate,
New Delhi.
APPEARANCE
Shri V.V. Gautam, Advocate - for the appellant. Shri Rohit Issar, Authorized Representative (DR) - for the Department CORAM: HON'BLE SHRI JUSTICE DILIP GUPTA, PRESIDENT HON'BLE SHRI P.V. SUBBA RAO, MEMBER (TECHNICAL) FINAL ORDER NO. 51333-51334/2023 DATE OF HEARING: 13.09.2023 2 ST/51700 OF 2018 JUSTICE DILIP GUPTA:
The disposal of the two appeals filed by the appellant before the Commissioner (Appeals) by a common order dated 05.04.2018 has led to the filing of these two appeals by the appellant.
2. The order dated 12.06.2017 and the order dated 09.05.2017 passed by the Additional Commissioner rejecting the refund claim of the appellant for the reason that the refund applications were not filed within the period prescribed under section 102 (3) of the Finance Act, 19941 were assailed by the appellant before the Commissioner (Appeals), and as noted above, the two appeals were rejected by a common order dated 05.04.2018.
3. It transpires from the record of the appeal that the appellant paid service tax during the period 01.04.2015 to 29.02.2016 under the category of "construction of residential complex". Section 102 of the Finance Act, 2016 was inserted w.e.f. 14.05.2016. It provides that notwithstanding anything contained in section 66B of the Finance Act, no service tax shall be levied or collected during the period commencing from April 01, 2015 and ending February 29, 2016 (both days inclusive), in respect of taxable services provided to the Government, a local authority or the Government authority, by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of certain structures mentioned under a contract entered before March 01, 2015.
1. the Finance Act 3 ST/51700 OF 2018
4. Sub-section (2) of section 102 provides that refund shall be made of all such service tax which has been collected, but which would not have been so collected had sub-section (1) been in force at all the material times.
5. Sub-section (3) of section 102 provides that notwithstanding anything contained in the Chapter, an application for the claim of refund of service tax shall be made within a period of six months from the date on which the Finance Act, 2016 receives the assent of the President.
6. It is not in dispute that the assent was given by the President on 14.05.2016.
7. The appellant filed two refund applications for an amount of Rs. 1,29,37,153/- and Rs. 4,97,41,603/- in terms of section 102 of the Finance Act, but admittedly after the period of six months contemplated under sub-section (3) of section 102 of the Finance Act. The two applications filed by the appellant were rejected by the Adjudicating Authority by a common order for the reason that they were filed beyond the period stipulated in sub-section (3) of section 102 of the Finance Act and the Commissioner (Appeals) has upheld the order passed by the Adjudicating Authority.
8. Shri V.V. Gautam, learned counsel appearing for the appellant submitted that the Commissioner (Appeals) committed an error in rejecting the refund applications for the reason that they were filed after six months. Elaborating this submission, learned counsel pointed out that refund applications can be filed only under section 11B of the 4 ST/51700 OF 2018 Central Excise Act, 19442 made applicable to service tax matters by virtue of section 83 of the Finance Act and, therefore, the period of one year contemplated under section 11B of the Excise Act should be considered for the purpose of limitation in filing refund application and not six months prescribed under section 102 (3) of the Finance Act.
9. Shri Rohit Issar, learned authorized representative appearing for the department has, however, submitted that in view of the provisions of section 102 (3) of the Finance Act, the refund application has necessarily to be filed within the time stipulated therein i.e. within six months and section 11B of the Excise Act would not come to the aid of the appellant, particularly in view of the language used in section 83 of the Finance Act.
10. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered.
11. In order to appreciate the contentions, it would be appropriate to reproduce the relevant provision of section 102 of the Finance Act and they are as follows :-
"102. Special provision for exemption in certain cases relating to construction of Government buildings:
(1) Notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the period commencing from April 01, 2015 and ending February 29, 2016 (both days inclusive), in respect of taxable services provided to the Government, a local authority or the Government authority, by way of construction, erection, commissioning, installation,
2. the Excise Act 5 ST/51700 OF 2018 completion, fitting out, repair, maintenance, renovation or alteration of - ***** (2) Refund shall be made of all such service tax which has been collected but which would not have been so collected had sub-section (1) been in force at all the material times.
(3) Notwithstanding anything contained in this Chapter, an application for the claim of refund of service tax shall be made within a period of six months from the date on which the Finance Act, 2016 receives the assent of the President."
12. It is not in dispute that in terms of sub-section (2) of section 102 of the Finance Act, refund of service tax which has been collected, but which would not have been collected had sub-section (1) of section 102 been in force at all material times has to be made. However, such refund has to be claimed in terms of sub-section (3) of section 102, which provides that an application for the claim of refund of service tax shall be made within the period of six months from the date the Finance Act, 2016 receives the assent of the President. The President gave the assent on 14.05.2016.
13. Learned counsel for the appellant has very fairly stated that both the applications were filed after the expiry of period of six months from 14.05.2016. However, the submission that has been advanced by the learned counsel for the appellant is that the claim of refund can only be filed under section 11B of the Excise Act which has been made applicable to service tax matters by virtue of section 83 of the Finance Act and, therefore, the time period stipulated in section 11B of the Excise Act i.e. one year from the relevant date would be the relevant period in the facts of the present case, in which case the applications filed for refund would be within time. 6
ST/51700 OF 2018
14. It is not possible to accept this submission advanced by learned counsel for the appellant. The appellant became entitled to refund of service tax only in view of the provisions of section 102(2) of the Finance Act. Sub-section (3) of section 102 specifically provides that the application for the claim of refund of service tax should be filed within six months from the date on which the Finance Act receives the assent of the President i.e. within six months from 14.05.2016. Section 102 of the Finance Act is a special provision for exemption in certain cases relating to construction of Government buildings. Section 83 of the Finance Act provides that the provisions of section 11B of the Central Excise Act shall apply so far as may be in relation to service tax, as they apply in relation to duty of excise. Thus, when there is a special provision dealing with exemption in certain cases relating to construction of Government buildings, there can be no manner of doubt that the refund applications will have to be filed in accordance with the provision of sub-section (3) of section 102 of the Finance Act. The provisions of section 11B of the Central Excise Act are applicable only so far as may be in relation to service tax, as they apply to duty of excise.
15. Even otherwise, section 11B of the Excise Act provides that refund application has to be filed within a period of one year from the relevant date, which is the date on which the duty is actually paid. Admittedly, in the present case, the refund applications were not filed within one year from the date on which service tax was paid.
16. In this view of the matter, the Commissioner (Appeals) committed no illegality in rejecting the refund applications that had been filed beyond six months from 14.05.2016. 7
ST/51700 OF 2018
17. The two appeals are, therefore, liable to be dismissed and are dismissed.
(Dictated and pronounced in open court.) (JUSTICE DILIP GUPTA) PRESIDENT (P.V. SUBBA RAO) MEMBER (TECHNICAL) PK, Shreya