2018 (11) TMI 420 – CESTAT CHENNAI – TMI – Refund of Service tax paid – denial of refund on the ground of time bar – Held that:- It is brought out that the refund claim has been filed within one year from the date of payment of service tax as provided under section 11B of the Central Excise Act, 1944. When the appellant have complied the time limit prescribed under section 11B and there is provision for extension of time in the notification, the authorities below ought not to have rejected the refund claim stating that the appellants have not furnished sufficient reasons for condonation of delay – refund allowed – appeal allowed – decided in favor of appellant. – ST/Misc./40816/2017 & ST/40277 And 40278/2014 – Final Order Nos. 42759-42760/2018 – Dated:- 1-11-2018 – Ms. Sulekha Beevi C.S., Member (Judicial) Shri Harish Bindumadhavan, Advocate for the Appellant Shri L. Nandakumar, AC (AR) for the Respondent ORDER In both these appeals, the appellant is aggrieved by the rejection of refu
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from the service provider. However, in the invoices with regard to certain sale of immovable properties, the service provider had noted the category of service as Real Estate Agent Service. In fact, the agreement itself stipulates that there is no agency relationship between the service provider and the appellant herein. The service would therefore be classifiable under Business Auxiliary Service / Business Support Service which are approved service for the appellant. Therefore, the rejection of refund claim stating that the services are not approved cannot sustain. He relied upon the decision in the cases of Mast Global Business Services India Pvt. Ltd. Vs. Commissioner of Central Tax, Bangalore North – 2018-TIOL-3115-CESTAT-BANG and Petronet LNG Vs. Commissioner of Central Excise, Delhi – 2017 (7) GSTL 54 (Tri. Del.). 3. The ld. AR Shri L. Nandakumar supported the findings in the impugned order. He argued that since the Real Estate Agent Service are not approved service for the appel
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long with marketing services. Therefore, I am of the view that the mis-classification of services in the invoices cannot be a ground for rejection of refund claim. I hold that the appellant is eligible for refund in Appeal No. ST/40277/2014. 6. In Appeal No. ST/40278/2014, the issue is rejection of refund claim on the ground of being time-barred. Ld. counsel for the appellant submitted that as per Notification 9/2009, the refund claim has to be filed within six months of payment of service tax. The notification also stipulates in para 2 clause (f) that the time can be extended by the Assistant / Deputy Commissioner, if necessary. The period for condonation of delay or extension has not been fixed in the notification. It is submitted by him that the refund claims have been filed within one year of the payment of service tax and would be well within the time prescribed under section 11B of the Central Excise Act, 1944. He relied upon the decision in the case of TATA Consultancy Services
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elow ought not to have rejected the refund claim stating that the appellants have not furnished sufficient reasons for condonation of delay. In the decision relied by the ld. counsel for the appellant, the Tribunal has held that though the refund claim is not filed within six months as provided in Notification 9/2009, when the claim has been filed within one year as provided under section 11B of the Central Excise Act, the claim ought not to have been rejected. Following the said decision and also appreciating the facts, I am of the view that the rejection of refund claim, to the extent disallowed on the ground of time-bar, is unjustified. I hold that the appellants are eligible for refund. The impugned order rejecting the refund claim to the extent of being time-barred is set aside and the Appeal No. E/40278/2014 is allowed with consequential relief, if any. 10. The miscellaneous application filed by Revenue for change of cause title is allowed. (Dictated and pronounced in open court)
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