Case Law Details
Shanti Construction Co Vs C.C.E. & S.T. (CESTAT Ahmedabad)
Retrospective exemption & refund of service tax – Tax paid utilising Cenvat credit also refundable
We find that as per the facts before us there is no dispute that the tender was opened on 28.01.2015 and the appellant was declared successful bidder thereafter no separate contract/ agreement was entered into. It is the department’s contention that the date of the work order i.e. 16.03.2015 has to be considered as contract. We do not agree with this contention for the reason that work order is only a procedure to begin the work however, since there is no separate contract/ agreement after opening of tender and acceptance thereof by the appellant that itself is treated as contract. Therefore, the date of opening of tender i.e. 28.01.2015 has to be taken as a date of contract. Section 102(1) (c) provides exemption only to those residential complex where a contract is entered into before the 1st day of March, 2015 and on which appropriate stamp duty, whenever applicable had been paid before that day.
We find that the Adjudicating Authority while denying the refund of this amount also noted that there is no evidence of payment of stamp duty on the contract. The Adjudicating Authority has missed the term “wherever applicable”. In the present case payment of stamp duty is not applicable. Therefore, the condition whether stamp duty was paid or otherwise cannot be applied in the present case. Only aspect to be considered is whether the contract is of prior to 01.03. 2015 or post that date. As discussed above the date of opening of tender and acceptance thereof is the date of contract which is 28.1.2015. The appellant’s claimed is squarely covered by section 102 and accordingly, they are eligible for the refund for this amount also.
Refund of Interest paid due to delay in payment of service Tax
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