Page 154 - GSTL_2nd April 2020_Vol 35_Part 1

56 GST LAW TIMES [ Vol. 35
form and manner as may be prescribed; and the application shall be accompa-
nied 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 collected from or
paid by him; and the incidence of such duty and interest, if any, paid on such
duty had not been passed on by him to any other person.
14. It is the contention of Sri Swaroop, Counsel for respondents 1 to 3,
that the said provision is applicable to the claim of refund made by the petition-
ers and therefore the claim of the petitioners is time-barred.
15. This contention is refuted by the Counsel for the petitioners by rely-
ing upon the decision of the Madras High Court in Natraj and Venkat Associates v.
Assistant Commissioner, Service Tax, Chennai-II [2010 (2) Taxmann.com 598
(Madras) = 2010 (249) E.L.T. 337 (Mad.)].
16. In Natraj and Venkat Associates (supra), there was a claim for refund
of service tax erroneously paid on construction activity undertaken in Sri Lanka
by a firm rendering architectural services. The petitioner therein had received
payment from a client in Sri Lanka on 27-5-2005 in US Dollars and the petitioner
had paid a sum of Rs. 8,67,800/- on 4-7-2005 towards service tax. After realizing
that the services rendered for construction of a building in Sri Lanka would not
attract service tax, petitioner made a claim for refund on 20-9-2006. On 23-5-2007,
the respondents therein rejected the claim of the petitioner for refund on the
ground that it is time-barred and also on the ground that the claim was not in
proper formant. Petitioner filed appeal to the Commissioner of Central Excise
(Appeals), which was rejected by an order dated 21-11-2008 on the ground that
even if the tax was collected without authority of law, the claim for refund can-
not be entertained beyond the period mentioned in [Section] 11B of the Central
Excise Act, 1944. Petitioner assailed the same before the Madras High Court and
the Madras High Court allowed the Writ Petition and held that sub-section (1) of
Section 11B dealt with only the claim of refund of “any duty of excise”; and that
the word “duty” is not defined under the Act. It held that if what was paid cannot
be taken to be duty of excise, the bar of limitation under Section 11B(1) cannot be applied.
It held that the bar of limitation prescribed under sub-section (1) of Section 11B
applies only to “any person claiming refund of any duty of excise and interest”.
It therefore held that the claim of the petitioner for refund can be entertained by
the High Court as there was no dispute about the fact that no service tax was
payable by the petitioner on the transaction in question and what was paid by
them was not therefore service tax.
17. Similar view was taken by the Division Bench of Karnataka High
Court in Commissioner of Central Excise (Appeals), Bangalore v. KVR Constructions
[2012 (22) taxmann.com 408 (Kar.) = 2012 (26) S.T.R. 195 (Kar.)]. In that case, the
assessee was a construction company rendering services under category of “Con-
struction of Residential Complex Service” and was paying service tax. During
the relevant period, the assessee had constructed various buildings for one ‘A’
and had paid service tax on same. Subsequently, the assessee filed an application
for refund of the service tax paid on the ground that the building construction,
which was done by it for ‘A’, was a non-profit organization and it was not liable
to pay such tax in the light of a Circular No. 80/10/2004, dated 17-9-2004. The
Assistant Commissioner rejected the claim for refund on the ground that the ap-

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