Page 256 - GSTL_26th March 2020_Vol 34_Part 4

750 GST LAW TIMES [ Vol. 34
Rectification of Mistake (Contd.)
litigant’s part for which no rectification provided under the Act - Section
74 of Finance Act, 1994 and Section 35C of Central Excise Act, 1944 —
Airef Engineers Pvt. Ltd. v. Commissioner of Service Tax, Delhi (Tri. - Del.) .......... 433
— Grant of - Bona fide lapse of assessee’s counsel to bring to notice of
Tribunal’s earlier order passed by same Member at Bench at another
place - HELD : This cannot be ground for rejecting ROM application and
denying substantial justice to assessee - It was more so, as earlier order
was authored by same Member - There was miscarriage of justice and
unnecessary litigation brought before High Court - On facts, held that
substantial justice required that assessee could not be denied benefit of
Works Contract Composition Scheme - Section 74 of Finance Act, 1994 —
GE T & D India Ltd. v. Commissioner of C. Ex. & S.T., Chennai (Mad.) ............ 176
REFUND/REFUND CLAIM :
— Business Auxiliary Service - Since providing of warranty parts to
computer manufacturer (HP) has been held to be sale and not a service
under BAS, appellant entitled to refund of Service Tax paid with interest
on insistence of department - Section 11B of Central Excise Act, 1944 as
applicable to Service Tax vide Section 83 of Finance Act, 1994 — Foxteq
Services India Pvt. Ltd. v. Commr. of GST & C. Ex., Chennai (Tri. - Chennai) .......... 470
— Input tax credit refund, application seeking ruling with regard to
documents to be filed, not maintainable - See under ADVANCE RULING . . 329
— Limitation - Applicability thereof when Service Tax paid in excess by
mistake which was otherwise not payable - Limitation period as
prescribed under Section 11B of Central Excise Act, 1944 as applicable to
Service Tax vide Section 83 of Finance Act, 1994 is still applicable and the
claim having been filed beyond period of one year from the date of
payment of Service Tax is barred by time — State Bank of India v. Commissioner
of Service Tax, Mumbai-I (Tri. - Mumbai) .......................... 562
— of accumulated ITC - Exports of goods - Restrictions under C.B.I. & C.
Circular No. 125/44/2019-GST, dated 18-11-2019 - Sustainability -
Undoubtedly recognizing difficulties being faced by exporters,
Department has permitted filing of refund claim for one calendar
month/quarter or by clubbing successive calendar months/quarters -
However, restrictions imposed under para 8 of above circular on
spreading refund claim across different financial years is, prima facie
arbitrary, irrational and unjustified - Valuable right accrued to petitioner
cannot be denied merely on the ground that exports are spread over two
financial years - Accordingly while issuing notice to Department to file a
detailed reply, Para 8 of circular ibid stayed till final disposal of petition -
Meanwhile, petitioner can file refund claim within four weeks which be
decided on merits - Rule 89 of Central Goods and Services Tax Rules,
2017 - Section 54 of Central Goods and Services Tax Act, 2017 - Article
226 of Constitution of India — Pitambra Books Pvt. Ltd. v. Union of India (Del.) ..... 196
— of accumulated ITC - Migration to GST regime - Form GST TRAN-1 not
made available on web portal upto 25-8-2017 and assessee could not use
and exploit ITC while making exports in months of July and August,
2017 - HELD : Assessee cannot be made to suffer on account of failure on
part of Respondents in devising smooth transition to GST regime, from
erstwhile indirect taxation structure - Assesse, being exporter under GST
regime entitled to undertake zero-rated supplies - Rights of parties
cannot be subjugated to poor and inefficient software systems adopted
GST LAW TIMES  26th March 2020  352