Page 235 - GSTL_2nd April 2020_Vol 35_Part 1

2020 ] TEKNOMEC v. COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI 137
from SIPCOT as well as certificate stating that SIPCOT has not applied for re-
fund. Along with these documents, the refund application was filed on 16-11-
2017. There was no delay on the part of the appellant in filing the refund. The
delay occurred only because SIPCOT had failed to intimate the appellant that
they have to directly apply for refund. The appellant was on the bona fide belief
that since the Service Tax was collected by SIPCOT, the refund claim would be
claimed by SIPCOT and, thereafter, passed on to the appellant. Though, the due
date for filing the refund is 30-9-2017, SIPCOT had communicated to the appel-
lant only on 27-10-2017 and this was the reason for the delay. To process the re-
fund claim, the appellant has to furnish the above documents obtained from
SIPCOT. The delay occurred only for the reason that SIPCOT delayed in giving
the documents for refund to the appellant.
3.1 The Learned Counsel submitted that the refund cannot be denied as
being time-barred for the reason that Section 104 does not state specifically so as
to who has to file the refund. It merely lays down provision for limitation with-
out identifying, who has to apply for refund. Further, when SIPCOT is the inter-
mediary who has collected refund, it is impracticable for the appellant to obtain
documents and file the refund within a period of six months, without sufficient
cooperation from SIPCOT. He relied upon the decision in the case of M/s. JSW
Dharmatar Port Pvt. Ltd. v. Union of India reported in 2019 (20) G.S.T.L. 721 (Bom.).
The facts in the said case are that Section 103 was inserted in Finance Act with
effect from 14-5-2016, wherein, it was provided that the Service Tax paid on con-
struction activities for the Ministry of Civil Aviation or Ministry of Shipping was
exempted from Service Tax. The service provider had to obtain a certificate from
the concerned Ministries to claim refund. The Hon’ble Court held that “no person
can be expected to perform a task beyond his control” and, therefore, the time taken to
obtain the certificates from the Ministry was ignored for computing the period of
limitation. The decision in the case of M/s. Mangalore Chemicals & Fertilizers Ltd. v.
Deputy Commissioner reported on 1991 (55) E.L.T. 437 (S.C.), was also relied. In
the said case, the refund of Sales Tax was rejected for the reason that the assessee
therein had not obtained prior permission for adjustment of the eligible refund.
After considering the facts of the case, the Hon’ble Supreme Court held that the
said permission was only procedural in nature and, therefore, the re-
fund/adjustment could not be denied.
3.2 He, therefore, prayed that the limitation start from the date when
SIPCOT confirmed the appellant to apply for the refund directly. Computed
from this date, the refund application is well within time.
4. The Learned Authorised Representative Shri L. Nandakumar, AC
(AR) supported the findings in the impugned order. He lay much stress that Sec-
tion 104 has specifically stated that the refund has to be filed within six months
from the date on which the amendment receives the assent of the President.
Thus, the appellants ought to have filed the refund on or before 30-9-2017. The
refund is filed on 16-11-2017 being beyond this date and therefore has been right-
ly rejected by the authorities below. He relied upon the decision in M/s. Singh
Enterprises v. Commissioner of Central Excise, Jamshedpur reported in 2008 (221)
E.L.T. 163 (S.C.) to argue that when the statute specifies a period of limitation,
the Tribunal has no powers to condone the delay beyond the said prescribed pe-
GST LAW TIMES  2nd April 2020  299