Casa Grande Co-Operative Housing Versus Commissioner of CGST, Mumbai South
Service Tax
2019 (1) TMI 721 – CESTAT MUMBAI – 2019 (29) G. S. T. L. 349 (Tri. – Mumbai)
CESTAT MUMBAI – AT
Dated:- 11-1-2019
Appeal No. ST/86347/2018 – A/85048/2019
Service Tax
Mr. S.K. Mohanty, Member (Judicial)
Shri Vipin Jain, Advocate for appellant
Shri M.K. Sarangi, Jt. Commr (AR) for respondent
ORDER
Per: S.K. Mohanty
This appeal is directed against the impugned order dated 28.12.2017 passed by the Commissioner of Central Tax (Appeals), Mumbai, upholding the adjudication order dated 11.11.2006, by which the Asst. Commissioner (Refund), Service Tax-II, Mumbai had rejected the claim for refund of service tax amounting to Rs. 20,38,255/- filed by the appellant.
2. Brief facts of the case are that the appellant is engaged in providing taxable service under the category of “Club or Association Service” defined under Section 65(25a) of the Finance Act, 1994. The appellant is regis
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dated 28.12.2017 has upheld rejection of the refund application by the original authority.
3. Learned Advocate appearing for the appellant submitted that for the first time the appellant became aware about the decision rendered by this Tribunal in the case of Matunga Gymkhana vs. Commissioner of Service Tax, Mumbai – 2015 (38) STR 407 (Tri-Mum), holding that contribution received by the housing society from its members is not exigible to service tax under the Head “Club or Association Service” and accordingly, upon seeking legal opinion, filed an application dated 19.08.2016, claiming refund of service tax paid during the period 2005-06 to 2014-15. He further submitted that since the levy of service tax under such category of service was held as unconstitutional by the Hon'ble Gujarat High Court in the case of Sports Club of Gujarat Ltd.[2013 (31) STR 645 (Guj.)] and by Hon'ble Jharkhand High Court in the case of Ranchi Club Ltd.[ 2012 (26) STR 401 (Jhar.)], the limitation prescribed
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bed under the statute is strictly applicable for consideration of the refund application and the statutory authorities are not empowered to relax the limitation period, while entertaining the application filed under the statute. In support of such arguments, the learned D.R. has relied on the judgments' of the Hon'ble Supreme Court in the case of Miles India Ltd. – 1987 (30) ELT 641 (SC), Collector v. Doaba Co-operative Sugar Mills – 1988 (37) ELT 478 (SC) and Assistant Collector of Customs v. Anam Electrical Manufacturing Co. – 1997 (90) ELT 260 (S.C.). The learned D.R has also relied on the judgment of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. (supra) to state that where the tax levy is declared unconstitutional by the competent court, the claim for refund will not arise under such law, which was so affirmed as illegal. Therefore, he submitted that refund application filed by the appellant cannot be governed under Section 11B of the Act, and accordingly, rejec
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ce tax). Clause (f) in explanation (B), appended to Section 11B ibid provides the relevant date for the purpose of computation of limitation period for filing of refund application. As per the said statutory provisions, in the case of the present appellant, the date of payment of service tax should be considered as the relevant date. Section 11B ibid mandates that the refund application has to be filed before the expiry of one year from the relevant date. In this case, it is an admitted fact on record that the refund application was filed by the appellant beyond the statutory time limitation prescribed under the statute. Therefore, the refund sanctioning authority adjudicating the refund issue under the statute has no option or scope to take a contrary view, than the position prescribed in the statute, to decide the issue differently. In other words, when the wordings of Section 11B are clear and unambiguous, different interpretations cannot be placed by the authorities functioning und
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authorities acting under the Act were justified in disallowing the claim of refund, as they were bound by the period of limitation provided under Section 27(1) of the Customs Act, 1962 [pari materia with Section 11B (supra)].
6.1 In view of the above settled principles of law and in view of the fact that the refund applications were filed and decided under Section 11B ibid, the time limit prescribed there-under was strictly applicable for deciding such issue. Since, the authorities below have rejected the refund applications on the ground of limitation, I do not find infirmity in such orders, as the same are in conformity with the statutory provisions.
6.2 The ratio of the judgment delivered by the constitutional Bench of Hon'ble Supreme Court in the case of Mafatlal Industries (supra) will not support the case of the appellant inasmuch as, when any provision in the statute has been held to be unconstitutional, refund of tax under such statute will be outside the scope and purview of
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