Custom, Excise & Service Tax Tribunal
M/S.C L International Hotels Ltd vs Cst-Service Tax, Delhi on 13 May, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. III
Service Tax Appeal No. 58799/2013-ST[SM]
[Arising out of Order-In-Appeal No. 123/ST/DLH/2013 Dated 25.04.2013 passed by CCE, Delhi]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s.C L International Hotels Ltd. Appellant
Vs.
CST-Service Tax, Delhi Respondent
Coram: Honble Ms. Archana Wadhwa, Judicial Member Appearance:
Shri J.K. Mittal & Varu Gaba, Advocate for the Appellants Shri M.S. Negi, AR for the Respondent Date of Hearing: 25.02.2014 Date of Decision:13.05.2014 FO ORDER NO. 52114 /2014_ Per Ms. Archana Wadhwa:
Briefly stated, the appellants are registered with the Service Tax Department for providing various taxable services. The appellants entered agreements between 1986 to 1992 and sub-licensed its premises to different parties after accepting interest free security deposits totally amounting to Rs. 1680.45 lakhs for a period of nine years and eleven months. This deposit was required to be maintained by the sub-licensee with the appellants at all times during the subsistence of the agreement and would not attract any interest.
2. An audit of the appellants was conducted by the offices of the Service Tax Commissionerate, Delhi and it was considered that the interest received by the appellants on the security deposit amount may be considered as consideration for the use or occupancy of property and service tax should be charged on this amount. The appellants accepted the audit objection and voluntarily deposited an amount of Rs. 31,32,563/- as service tax and cess alongwith interest.
3. The said deposits were made by the appellant on 03.02.2009, 14.03.2009 and 06.04.2009.
4. Subsequently, the appellant realised that no service tax was payable on notional interest (as held by the Tribunal in the matter reported in 2006 2 (STR) 237 (Tri.-Kolkatta), upheld by Supreme Court reported in 2006 4 (STR) J 152 (SC) they filed refund claim of Service Tax so deposited by them. The said refund claim stands denied by the lower authorities vide his impugned order on the point of limitation.
5. The appellant submit that they had filed refund application on plain paper on 12.08.2009 itself. However, subsequently they were advised by their jurisdiction adjudicating authority to file the refund claim in a proper format, which was accordingly filed by them on 18.02.2011. As such, the lower authorities have wrongly considered the dated of application as 18.02.2011 whereas the refund claim is required to be considered as having been filed on 12.08.2009.
6. It is also the contention of the learned advocate that inasmuch as no service tax was required to be deposited, the Revenue cannot retain the same and is required to refund the same without considering the time bar aspect.
7. I do not agree with the learned advocate that the Revenue authorities are not required to look into the limitation aspect. Admittedly, the refund is to be given only in those cases where it is not required to be deposited. As such, limitation would not apply in any case of refund, which proposition would be against the law. Further, it is well settled that the Revenue authorities, including the Tribunal, being creature of statue are required to work within the four corners of the law and cannot go beyond it. As such the refund, if otherwise admissible, has to meet the barred of limitation.
8. The appellant contention is that they have applied for the refund claim on 12.08.2009. The original adjudication authority has observed that the said letter dated 12.08.2009 is in the office records but has not accepted the same on the ground that there is no evidence of having received the said letter in the office. In my view, the above findings are self-contrary. On one hand the Asstt. Commissioner is accepting the presence of the refund claim application in the office record and on the other hand has observed that the same does not show the receipt. If the same was actually not filed by the appellant, I really fail to understand as to how the said letter travelled up to the concerned file and found its way therein. As such, I deem it fit to set aside the impugned order and remand the matter to the original adjudicating authority look into the said fact afresh and to decide the issue accordingly.
9. The appeal is thus allowed by way of remand.
(Pronounce in the open Court on..) (Archana Wadhwa) Member (Judicial) Jyoti* ??
??
??
??
4