Chl Limited vs C.S.T., New Delhi
- CitationService Tax Appeal No.52239 of 2015
Ratio decidendi
The rule this decision rests on
Where a refund claim for service tax is made under Section 11B of the Central Excise Act, 1944, as applied to service tax by Section 83 of the Finance Act, 1994, the claim must be made within one year from the date of payment of the duty, and a claim filed beyond that period is barred by limitation unless it falls within one of the circumstances enumerated in Section 11B(5) Explanation (B)(a) to (ec), none of which the assessee's claim satisfied. Where the assessee contends that a condition of a tax exemption notification, namely the issue of a certificate by the beneficiary body, was fulfilled only at a later date, the limitation period for refund still runs from the date of payment of the tax, not from the date on which the exemption condition was satisfied or the certificate received, and a claim filed more than one year after the date of receipt of the certificate is out of time on either reckoning.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Arising out of the order in appeal No.22/ST/Appl-I/14 dated 23.3.2015 passed by the Commissioner of Central Excise (Appeals), New Delhi.
For approval and signature:
Honble Mr. Justice G. Raghuram, President
1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?
2 Whether it should be released under Rule 26 of 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?
CHL Limited .. Appellant
Vs.
C.S.T., New Delhi . Respondent
Appearance:
Present Shri Vinod Kumar, Advocate for appellant
Present Shri Amresh Jain, A.R.. for the respondent
Coram: Honble Mr. Justice G. Raghuram, President
Final Order No. 52653/2015
Per Justice G. Raghuram:
The appeal is by the assessee against the order dated 23.3.2015 passed by the Commissioner (Appeals-I), New Delhi. The impugned order rejected appellants appeal preferred against the Primary adjudication order dated 27.1.2014 passed by the Assistant Commissioner, Service Tax Division II, New Delhi..
2. The relevant facts are that the appellant filed refund claim for Rs.5,25,330/- on 20.4.2011 under Section 11B of the Central Excise Act, 1944, a provision applicable to refund of service tax as well in view of Section 83 of the Finance Act, 1994. After due process, the Primary adjudication order was passed rejecting refund on the ground that the claim was filed beyond the limitation period of one year from the date of remittance of service tax.
3. The appellant leased its Conference Hall to the World Health Organization for the period 31.10.2009 to 23.12.2009 and remitted service tax on such taxable service by way of GAR-7 challans dated 5.11.2009, 5.12.2009 and 6.1.2010. In view of provisions of Section 11B (5) Explanation (B)(f), the application for refund was beyond the expiry of one year from the date of payment of duty, since the appellants claim for refund does not fall in any of the circumstances enumerated in sub-clauses (a) to (ec) of Section 11B(5) Explanation. Since the appellant had filed the refund claim on 20.4.2011, beyond one year from any of the three challans through which service tax was remitted, the Primary authority rejected the claim for refund on the bar of limitation. The appellate authority concurred with the impugned order.
4. Ld. Counsel for the appellant strenuously contends that the exemption from liability to tax on services provided to the World Health Organization, under Notification No.16/2002-, dated 2.8.2002 issued under Section 93 of the Act incorporates a condition of issuance of certificate by the World Health Organization for rendition of service to that Body as a condition precedent for availment of exemption and that exemption certificate was received from the W.H.O. only on 1.4.2010, the application was made on 20.4.2011.
5. It requires to be noticed that claim for exemption was made beyond the period of one year even from the date of receipt of the certificate from the W.H.O. In any event, the limitation prescribed in Section 11B(5) Explanation (B)(f) of the Central Excise Act, 1944 requires an applicant to claim refund within one year from the date of payment of duty. In the facts and circumstances, the concurrent orders by the authorities below are impeccable and warrant no interference with the impugned order. The appeal is without merits and is dismissed.
(Justice G. Raghuram))
President
scd/
1
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