Case Law Details
In the instant case, Jyotsana D. Patel (the Appellant) purchased a residential unit from a builder, on which the builder had collected Service tax and deposited the same with the Department. As there is no levy of Service tax on residential unit as held by the Hon’ble High Court in the case of K.V.R. Constructions Vs. CCE [(2010) 25 STT 436 (Kar.)], the Appellant filed a refund claim of the amount paid by the builder as Service tax to the Department. The refund claim filed by the Appellant was sanctioned by the Adjudicating Authority.
Thereafter, on appeal being filed by the Revenue before the Commissioner (Appeals), the Commissioner (Appeals) held that the refund claim is barred by limitation. Being aggrieved, the Appellant filed an appeal before the Hon’ble CESTAT, Mumbai.
The Hon’ble CESTAT, Mumbai held that when the Appellant was not required to pay any Service tax for acquisition of residential unit, amount deposited would not be considered as an amount of Service
tax and therefore, time limit prescribed under Section 11B of the Central Excise Act, 1944 will not be applicable. Accordingly, Order of the Commissioner (Appeals) was set aside and the matter was decided in favour of the Appellant.
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Author Bio
As on 31st March, 2017 a credit balance for Rs 17991/ was available in our PLA book. On 18.11.2017 the above balance was transferred to CGST during filing TRAN-1 Return. On 20.11.2017 the subject amount had been utilized by us to remit the levy of due CGST for the month of Oct.2017. During verification of our records the deptt raised objection on above exercise and insisted to reverse the amount with interest & advised to claim refund separately of the same. In compliance of above we reversed the subject amount on 20.08.2018 during filing return for the month of Jul-18 & filed a refund claim. We also paid interest on Rs 17991/. Now the deptt is saying that our refund claim is time barred as per provision of u/s 11B of CEA, 1944. According to them our claim should be filed within a period of 1 year i.e. Jun-17 to Jun-18. Please expedite your valuable legal views on the issue.
Since the PLA balance lying in the credit balance is not in the nature of peyment of duty but only a deposit. Hence, the time limite of one year envisaged in Section 11B of CEA, 1944 is not aaplicable and the refund claim is considered not hit by time limit.