Ishwar Metal Industries Vs Commissioner, Central Excise and Central Goods & Service Tax (CESTAT Delhi)
Limitation period not applicable to refund claim of service tax paid mistakenly
The CESTAT, Delhi in M/s Ishwar Metal Industries v. Commissioner, Central Excise and CGST, [Service Tax Appeal No. 51834 of 2018-SM dated January 28, 2022] set aside the order rejecting the refund claim of the assessee for the Service tax paid mistakenly, passed by the Revenue Authority, on the grounds of limitation. Directed the Revenue Department to refund the amount to the assessee along with the interest @12% within 45 days.
Facts:
M/s Ishwar Metal Industries (“the Appellant”) filed refund claim along with interest under Section 11B of the Central Excise Act, 1944 (“the Central Excise Act”) of mistakenly paid Service tax amounting to INR 31,50,587/- on May 25, 2011 for the period 2007-08 to 2009-10 provided to Electricity Board/Nigam. The Assistant Commissioner (“the Respondent”) rejected the refund claim stating that the Appellant is required to deposit Service tax on the taxable services, on the ground that the refund claim has been filed after more than one year from the date of deposit of the tax.
Subsequently, the Appellant preferred an appeal before the Ld. Commissioner Appeals (“the Appellate Authority”) against the decision of the Respondent, wherein the appeal was dismissed and the decision of the Respondent was upheld.
Being aggrieved, the Appellant filed this appeal.
The Appellant contended that, as per Circular No. 123/5/2010 -TRU dated May 24, 2010, that clarified the applicability of service tax on laying of cables under or alongside roads and similar activities. The work undertaken by them, are not liable to service tax, hence no service tax was payable and all the services/work was allotted by the government was through open bidding. The price fixed as per work order is not affected due to levy of tax.
Issue:
Whether the Appellant is entitled to get the refund claim of service tax paid by mistake along with interest?
Held:
The CESTAT, Delhi in Service Tax Appeal No. 51834 of 2018-SM dated January 28, 2022 held as under:
