Limitation not applicable to Service Tax refund in the nature of revenue deposit

Aadhar Stumbh Township Pvt. Ltd. Vs Commissioner of Central Excise & Central Goods & Service Tax Commissionerate (CESTAT Delhi)

I find that there is sufficient evidence on record that appellant had dispatched the refund applications by speed post on 8.11.2016, which were returned by the Department by refusing to accept. Further, refusing of refund by the Department is evident from the facts on record, as the Service Tax Division has been shifted from CGO Complex, New Delhi to Ambedkar Bhawan, Rohini, New Delhi. Thus, I hold that the appellant had dispatched the refund application well within the period of limitation, which was expiring on 14.11.2016. Such dispatch on 8.11.2016 is also proved by the fact that the appellant has soon thereafter receipt back of the mail with the remark “refused to accept”, has again filed the application by hand on 5.12.2011. In this view of the matter, I hold that the refund application has been filed within the limitation as prescribed under Section 102(3) of the Finance Act. I further hold that in view of Section 102(1) and (2) of the Finance Act, the service tax deposited by the appellant has taken the changed character of revenue deposit, by operation of law as the Government of India extended exemption with retrospective effect vide notification no.9/2016-ST read with Section 102 introduced by Finance Act, 2016. Thus, the rejection of refund by Revenue is also hit by Article 265 of the Constitution of India. I further hold that no limitation is applicable for refund in the facts and circumstances of the present case, due to the amount lying with the Revenue having the nature of revenue deposit.

FULL TEXT OF THE CESTAT DELHI ORDER

The appellant-Aadhar Stumbh Township Pvt. Ltd. is registered with the Service Tax Department and providing services under the category of “Construction service” including commercial/ industrial building or civil structure, works contract service, etc. The appellant is also executing work for the State Government being CPWD and PWD, for which they were entitled to exemption under Mega Exemption Notification No.25/2012-ST. AS the exemption lapsed w.e.f. 1.4.2015, the appellant started depositing the tax. Subsequently, the Government extended the exemption benefit by making retrospective amendment in Notification No.25/2012-ST vide amending notification no.9/2016-ST dated 1.3.2016. Further, Section 102 of the Finance Act, 1994 sub-section (1) provided – “notwithstanding anything contained in Section 66 B, no service tax can be levied or collected for the period commencing from the 1^st day of April, 2015 and ending with 29^th day of Feb., 2016 (both days inclusive) in respect of the taxable services provided to the Government, a local authority or a Government Authority, by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of

(a) civil structure or any other original works meant predominantly for use other than for commerce, industry or any other business or profession; under a contract entered into; before the 1^st day of March, 2015 and on which, an appropriate stamp duty applicable has been paid.

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