Page 237 - GSTL_2nd April 2020_Vol 35_Part 1

2020 ] TEKNOMEC v. COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI 139
make the refund application. If it had mentioned that service provider could
make the application and pass over the amount to the service recipient, it would
have been easy to apply within the limitation prescribed. In cases where SIPCOT
has not collected and has borne the incidence of tax, SIPCOT can make the re-
fund application. The person who can make the refund claim having not been
specified in the section, the plea put forward by the appellants that they were
unable to make the claim before 30-9-2017 is not without substance.
9. The Learned Counsel for the appellant has relied upon the decision
of the Hon’ble High Court of Bombay in the case of M/s. JSW Dharmatar Port Pvt.
Ltd. (supra). In the said case, the issue was with regard to refund of the Service
Tax paid in respect of construction works done for Ministry of Civil Avia-
tion/Ministry of Shipping. There was a condition specified in the Section 103,
that the service provider has to furnish the certificate from the concerned Minis-
try to get the refund of Service Tax. The Hon’ble High Court held that delay in
obtaining the certificate from the Ministry has been excluded for computing the
period of limitation. The discussion made by the Hon’ble High Court is relevant
and noteworthy.
“13. Sub-section (2) of Section 103 pertains to refund to be granted of the
Service Tax already paid. It provides that the refund shall be made of all
such Service Tax which has been collected but would be refundable under
sub-section (1). Sub-section (3) of Section 103 starts with a non-obstante
clause, which provides that notwithstanding anything contained in Section
103, an application for claim of refund of Service Tax shall be made within a
period of six months from the date on which the Finance Bill, 2016 receives
the assent of the President.
14. From the perusal of this provision, one thing becomes clear that the re-
spondents cannot link the requirement of refund application being made
within the period of limitation envisaged in sub-section (3) of Section 103,
with the condition of production of certificate from the Ministry that the
contract had been entered into before 1-3-2015. Both these conditions namely :
production of certificate as well as making the applications within the period of lim-
itation have to be fulfilled, but the assessee cannot be expected to fulfil the condition
of making the refund application within limitation, at the same time, produce a cer-
tificate of the Ministry within the time envisaged under the section. In other
words, if the concerned Ministry consumes substantial time in issuing cer-
tificate, the assessee cannot be non-suited on the ground that the refund
application was not filed within the period of limitation. Any other view
would expose this provision to the vice of arbitrariness. Thus read, we need
not hold the provision unconstitutional. Reading down a statutory provi-
sion in order to save it from the vice of unconstitutionality, is a well known
interpretative technique often times employed by the Court. Even other-
wise, the interpretation that we have adopted is reasonable. No person can
be expected to perform a task beyond his control. On one hand, the statute
requires the certificate of the concerned Ministry before exemption from
duty can be claimed, at the same time, the statute mandates that the refund
application must be made within a certain time frame. We are, therefore, of
the opinion that the time consumed by the ministry in processing and
granting certificate, as referred to in sub-section (1) of Section 103, must be
GST LAW TIMES  2nd April 2020  301