Case Law Details
Larsen & Toubro Limited Vs Commissioner of CGST & CX (CESTAT Kolkata)
Held that the provisions of the General Clauses Act are to be applied for interpreting certain general situations like the period of limitation prescribed under any act.
Facts- The Appellant made payment of Service Tax amounting to Rs.42,16,666/- on provisional basis only. However, on receipt of the certified invoice, the actual Service Tax liability was ascertained as Rs.35,85,977/-, hence there was an excess payment of Service Tax amounting to Rs.6,30,689/- for the month of July 2013. Subsequently a refund application was filed on 06.08.2014 in terms of Section 11B of the Central Excise Act read with Section 83 of the Finance Act. A Show Cause Notice dated 27.03.2015 was issued alleging that the Appellant had contravened the provisions of Finance Act, 1994 and Service Tax Rules, 1994. The Adjudicating authority vide the Order-in-Original dated 08.12.2015 rejected the refund claim as barred by limitation of time on the ground of delay in filing such application by one day beyond the period of one year from the relevant date. On Appeal, the Ld.Commissioner(Appeals) upheld the Order-in-Original and rejected the Appeal before him. Hence the present Appeal before the Tribunal.
Conclusion- We find that in Section 11B of the Central Excises and Salt Act relating to refund claims the relevant expression is that a person claiming refund may make an application for refund…….. before expiry of six months from the relevant date. In view of the clear position regarding the effect of the word ‘from’, the proper procedure would be to exclude the relevant date and start the period of limitation of six months from the following day. The point raised in the appeal before us that the date of computation can never be by excluding 29-2-1988, has got no legal basis. Similarly, nothing much turns on the argument that since the Act specifically provides the relevant date which in the present case is the date of payment of duty, i.e. date of debit in the P.L.A., the Limitation Act cannot be made applicable. The fact that the relevant date has been defined in the Central Excises and Salt Act does not affect a general principle as to how to compute the period of limitation. The provisions of the Limitation Act and the General Clauses Act are to be applied for interpreting certain general situations like the period of limitation prescribed under any act. In view of the above circumstances, the decision of the Collector of Central Excise (Appeals) cannot be faulted. We, therefore, uphold the same and dismiss the appeal.
Held that it is my considered view that the period of limitation should be calculated as per the General Clauses Act and therefore I hold that the refund application has been filed within time and rejection of refund is incorrect and needs to be set aside.
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