Case Law Details
Manoj Vijay Vs Commissioner Central Goods And Service Tax (CESTAT Delhi)
Since post July 01, 2017, the applicability of Rule 6 (4A) of Central Excise Rules was no more available to the appellant, the excess amount already got deposited by the appellant at the time when Service Tax liability for the said quarter had not even accrued towards the appellant, but remain unutilised for any tax liability till 30.06.2017, the amount cannot qualify for being called tax. The said balance was appellant’s own money and Department cannot be allowed to get unjustly enriched out of said money. Seeing from this angle as well and in view of the above discussion, it is held that there can be no applicability of bar of limitation of Section 11B of Central Excise Act, to the amounts lying with Department but as assessee’s I hold that learned Commissioner (Appeals) has erred while invoking bar of limitation of one year as mentioned under section 11B for the amount which was not duty or tax. Learned Commissioner (Appeals) is also held to have erred while invoking the clause (f) of the definition of ‘relevant date’ as given under section 11B. Since the amount in question was not duty, date of payment of duty clause cannot apply and date of impugned deposit cannot be taken as relevant date.
FULL TEXT OF THE CESTAT DELHI ORDER
Present appeal has been filed to assail the order in appeal No. 392(CRM)/ST/JPR/2019 dated 25.10.2019. The relevant factual matrix for the adjudication of this appeal is as follows:
That the appellant is registered under the Service Tax as it is engaged in providing the taxable service. A refund claim of Rs.1,51,404/- was filed by the appellant for the reason that the aforesaid amount has been paid by the appellant in excess of the amount as was to be paid for the Service Tax liability of the appellant for the period of April, 2017 to June, 2017. Initial payment for the aforesaid quarter was made during 11.4.2017 to 24.4.2017. However, the Service Tax Return for the said quarter was filed on 15.8.2017. Since with effect from 01.07.2017 provisions of GST Act came into operation under which law the appellant was no more entitled to have the similar arrangement of adjusting the excess payment towards his future liability as was available under Rule 6 (4A) of Central Excise Act, 1944. Accordingly, the aforesaid refund was filed. However, vide Show cause Notice No. 9687 dated 24.08.2018 refund was proposed to be rejected as it has not been filed within one year from 24.4.2017. The said proposal was rejected initially vide Order in Original No. 10034 dated 10.9.2017. The appeal thereof as was filed by the appellant has been rejected vide Order under challenge. Still being aggrieved the appellant is before this Tribunal.
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