2018 (11) TMI 30 – CESTAT ALLAHABAD – TMI – Area based jurisdiction for grant of Refund – rejection of refund despite lack of jurisdiction – Works Contract service – services provided to the Government, a local authority or a governmental authority – exemption was restored by inserting entry 12A in the Mega Exemption.
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Held that:- The question of jurisdiction raised by the Revenue is not about the basic jurisdiction of the Assistant/Deputy Commissioner to deal with the refund claims. The objection is on area based jurisdiction. If the Revenue was of the view that the refund claims should have been filed with the jurisdictional officer of the Head Office, they were within their rights to transfer the same to the officer having the proper jurisdiction. Adopting an analogy that if an appeal against the orders of the Lower Authorities is to be filed before Delhi Benches of the Tribunal and same stands filed before the Allahabad Benches, the normal and accepted course of action would
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otification No.25/2012-ST dated 20.06.2012 (Mega Exemption) were omitted and the services specified therein, provided to the Government, a local authority or a governmental authority, became taxable. However, vide Notification No.09/2016-ST dated 01.03.2016, the aforesaid exemption was restored by inserting entry 12A in the Mega Exemption. 3. Further, Section 102 was inserted in the Act, vide the Finance Act, 2016, to provide as under: Section 102: (1) Notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the period commencing from the 1st day of April, 2015 and ending with the 29th day of February, 2016 (both days inclusive), in respect of taxable services provided to the Government, a local authority or a Governmental authority, by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of – (a) a civil structure or any other original works meant predominantly fo
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appellants, in terms of Section 102 of the Act, applied for the refunds, under Section 11B of the Central Excise Act, 1944 as made applicable to the Service Tax matters vide Section 83 of the Act, before their respective Deputy/Assistant Commissioner, Central Excise. 5. During examination of the refund claims, it was noticed that (i) the appellants did not provide any documents to correlate their refund claims with the conditions specified in Section 102 of the Act, (ii) they failed to produce any documentary evidence to show that they had not passed on the incidence of Service Tax and (iii) the payments for which refund claims were filed, had been deposited through challans under Service Tax Code/Registration Number of their Head Office at Lucknow. Accordingly, Show Cause Notices were issued to them for rejecting their refund claims. 6. The Deputy/Assistant Commissioner vide their orders, rejected the refund claims of the appellants, on the grounds that (i) the appellants did not sub
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h details were given only by the Head Office, the refund claims filed by the Branch Office was without jurisdiction. As such he concluded that the Assistant Commissioner/Deputy Commissioner was not having any jurisdiction to pass the said refund claims. Surprisingly, even after observing, as such, the Original Adjudicating Authority Orders have been upheld by him. When the Original Adjudicating Authority was not having any jurisdiction to deal with the refund claims, I really fail to understand as to how the same could have been rejected by the Original Adjudicating Authority. Such rejection would also be without jurisdiction, in which case the orders passed by the Original Adjudicating Authority would be null and void. 9. Further Commissioner (Appeals) has observed that appellant had taken the centralized registration only in the month of August, 2006 for their Head Office at Lucknow. As such he observed that it cannot be claimed that they had shown taxable services and value thereof
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resent case, the impugned orders passed by the Original Adjudicating Authority having no jurisdiction to deal with the refund claims would be non-est orders and should not have been upheld by Commissioner (Appeals). 11. Further, the Appellate Authority has observed that the Deputy/Assistant Commissioner should not have rejected the refund claims on merits inasmuch as they did not have any jurisdiction. He further observes that they should have rejected the refund claims only on the ground of jurisdiction and should have referred the same to the authority having jurisdiction to pass these refund claims. In spite of observing as above, the Commissioner (Appeals) has upheld the impugned orders to the extent of rejecting the refund claims on the ground that the same were filed in the wrong jurisdiction. 12. The question of jurisdiction raised by the Revenue is not about the basic jurisdiction of the Assistant/Deputy Commissioner to deal with the refund claims. The objection is on area base
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