2018 (9) TMI 388 – CESTAT CHANDIGARH – TMI – Refund Claim – whether the appellant have locus standi to file refund claim or not? – service tax deducted and deposited by the Housing Board on behalf of the appellant (service provider) – Held that:- This issue is already settled by the judgment of the Hon’ble Supreme Court in the case of Oswal Chemicals & Fertilizers Ltd. [2015 (4) TMI 352 – SUPREME COURT], where it was held that the appellant who had paid the excise duty to the manufacturer, viz., M/s. Indian Oil Corporation Ltd. and BPCL in the instant case, had the necessary locus standi to file the application claiming the refund of the duty – It was further held in the case that Explanation (B) defines “relevant date”. Though this date has reference to the calculation of limitation period for the purposes of seeking refund of the duty under the aforesaid provision. However, clause (e) while stating the “relevant date” clarifies that in case of a person, other than the manufacturer,
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e dt.30.1.2018 issued in favor of the appellant issued by the Housing Board Haryana and to pass a fresh order in accordance with law – appeal allowed by way of remand. – Appeal No. ST/60725/2018-ST – Final Order No. 62857/2018 – Dated:- 24-8-2018 – Hon ble Mr.Devender Singh, Member ( Technical ) For the Appellant : Shri Vikash Bansal, CA For the Respondent : Shri G.M.Sharma, AR ORDER Per : Devender Singh The facts of the case are that the appellant were awarded three works contracts by Housing Board, Haryana (HBH) for construction of flats for BPL category in Housing Board Colony, at different locations. The HBH deducted service tax @ 2.472 % (50% of the applicable rate) approximately amounting to ₹ 87.36 Lacs from running bills of the appellants on the amount of gross work executed by them after 01.07.2012. Aggrieved by the action of HBH, the appellants filed writ petition vide CWP No.12304 of 2015 before Hon ble Punjab & Haryana High Court where the High Court vide Order da
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und/B.B.Gupta/72/PKL/16-17/1181 dated 18.05.2017 returned the refund application along with supporting documents stating as under:- Since M/s. Bharat Bhushan Gupta & Company is not registered with this office and no record/details of the party is available with this office, therefore, this office is unable to process the refund claim. Secondly, you are also not a service receiver in respect of any services provided by any of the assessees in this jurisdiction. So, in any view provisions of Section 11B of Central Excise Act, 1944, as made applicable to Service Tax, you are not eligible for refund from this office. 2. Aggrieved from the letter dt.18.05.2017 issued by Assistant Commissioner, Central Excise Division, Panchkula, the appellant filed the appeal before the Commissioner (Appeals). However, their appeal was rejected on the ground that the appellant had no locus standi to file refund claim as service tax has been paid by the Housing Board Haryana. Second ground of rejection w
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and Haryana in the case of Bharat Bhushan Gupta & Co. vs. State of Haryana and others in its judgment dt.11.8.2018 held that no service tax was leviable on reverse charge basis by the Housing Board Haryana and direction of Housing Board in deducting part of Service Tax was declared to be illegal. He submits that as the service tax has been deducted illegally by the Housing Board Haryana and deposited with the Service Tax Department, they were eligible to file refund claim. In this regard, he relied on the judgment of the Hon ble Supreme Court in the case of Oswal Chemicals & Fertilizers Ltd. in its judgment dt.30.3.2015 in Civil Appeal No.2807 of 2004. He also submits that the Housing Board Haryana had issued disclaimer certificate dt.30.1.2018 in which the Housing Board Haryana has given its no objection to refund of service tax to the appellant and has stated that Housing Board will not make any claim for this amount at any time. Ld. CA submits that based on disclaimer certif
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in the Hon ble Supreme Court has held as below:- 5.Insofar as dismissing the application on the ground that the appellant did not have locus standi, we find that view taken by the authorities below is clearly erroneous in law. Section 11B of the Act which contains the provision for making a claim for refund of duty uses the expression any person who is eligible to claim refund of the duty. The relevant portion of Section 11B reads as under : Section 11B. Claim for refund of duty. – (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise before the expiry of six months from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collecte
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the reading of clause (e) to Explanation (B) appended to the aforesaid provision which is as under : Explanation. – For the purposes of this section, – …………………………. ………………………. (B) relevant date means, – …………………………………. …………………………………. in the case of a person, other than the manufacturer, the (e) date of purchase of the goods by such person; ……………………………………. 7.Explanation (B) defines relevant date . Though this date has reference to the calculation of limitation period for the purposes of seeking refund of the duty under the aforesaid provision. However, clause (e) while stating the relevant date clarifie
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he manufacturer, viz., M/s. Indian Oil Corporation Ltd. (hereinafter referred to as 'IOCL') and BPCL in the instant case, had the necessary locus standi to file the application claiming the refund of the duty." 7. In view of the above judgment of Hon ble Supreme Court, I hold that the appellant have locus standi to file refund claim in this case. I also find that the department has entertained the refund claim of another similarly placed contractor, as is evident from the Order-in-Appeal No.Appl/PKL/ST/32/2017-18 dt.22.2.2018 of the Commissioner (Appeals) in the case of Satish Kumar Gupta, Contractor. Hence, the rejection of plea of appellant on this ground by Commissioner (Appeals) is untenable. 8. The second issue pertains to merits of the case where HBH has given the disclaimer certificate. I find that the appellant have placed on record disclaimer certificate dt.30.1.2018 from the Housing Board Haryana in respect of their claim. The order of the Commissioner (Appeals)
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