Page 92 - GSTL_11th June 2020_Vol 37_Part 2

178 GST LAW TIMES [ Vol. 37
ruary, 2016, as provider of ‘works contract service’ on which the exclusion, per-
taining, inter alia, to ports, effected by Notification No. 25/2012-S.T., dated 20th
June, 2012, arose from its withdrawal by Notification No. 6/2015-S.T., dated
1st March, 2015 to be restored later by Notification No. 9/2016-S.T., dated 1st
March, 2016. By incorporation of Section 103 through Finance Act, 2003, the ex-
emption, withheld for the inter regnum, was made applicable with retrospective
effect.
3. Respondent herein filed on 30th August, 2016 its claim for refund of
tax included the dues of ` 43,16,39,802/- payable to M/s. Afcons Infrastructure
Ltd. and of ` 5,45,36,119/- to M/s. ITD Cementation India Ltd. In effect, though
the tax liability had been discharged by these two sub-contractors and the recipi-
ent of the service was the contractor of Jawaharlal Nehru Port Trust charged with
execution of the project, eligibility for the claim was sought as ‘person’ who had
borne the incidence of tax.
4. The original authority, and the first appellate authority, examined
the eligibility for application of retrospective exemption and held that the claim
had been filed within the time prescribed in Section 103 of Finance Act, 1994. The
scope for ‘unjust enrichment’ was also examined and it was found that the bar
did not arise.
5. We have heard the submissions of Learned Authorised Representa-
tive and Learned Chartered Accountant appearing for the respondent. It would
appear that the grievance of Revenue is that the appellate authority, while up-
holding the refund, failed to examine the existence of claim, if any, filed, or bene-
fit availed, by the two sub-contractors consequent upon restoration of exemption.
It was also contended that, despite the assertion made to the contrary in response
to proposal for rejecting the claim, the cost of the project had been capital-
ised/amortised. Furthermore, it is alleged that first appellate authority had failed
to ascertain if the respondent had concurred with Jawaharlal Nehru Port Trust to
include the tax component in the capitalisation to avail higher depreciation. It is
also contended that the requirement, in Notification No. 9/2016-S.T., dated 1st
March, 2016, prescribing certification of the contract having been entered into
before 1st March, 2015 had not been complied with.
6. Learned Authorised Representative contends that the decision of
Hon’ble Supreme Court in Commissioner of Customs v. Presto Industries [2001 (128)
E.L.T. 321 (S.C.)] and that of the Tribunal in Mars Plastics & Polymers Pvt. Ltd. v.
Commissioner of Customs, Chennai [2003 (156) E.L.T. 941 (Tri. - Mumbai)] required
the applicant of refund to establish their eligibility for benefit of any exemption
notification.
7. Having considered the rival submissions, we are of the opinion that
the impugned order cannot be assailed for non-compliance with the certification
prescribed in the exemption notification as the certificate furnished, though is-
sued on the letterhead of the Port Trust, has been attested by the Deputy Secre-
tary in the Ministry of Shipping, Government of India. The exemption notifica-
tion has not prescribed the form or manner in which the certificate of the Minis-
try is to be authenticated. Attestation of the certificate signed by Chairman, Ja-
waharlal Nehru Port Trust by the competent authority in the Ministry of Ship-
ping, therefore, suffices as compliance.

GST LAW TIMES  11th June 2020  92