Page 175 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] W.S. INDUSTRIES (I) LTD. v. COMMR. OF CUS. & C.T., VISAKHAPATNAM 93
tral Excise - Appellant having suffered several setbacks in their factory during
the relevant period including a reference of their company to BIFR, not able to
pursue all Service Tax matters actively and claim refund in time - Liberal view
to be taken and delay in filing the refund claim condoned - Original authority
directed to sanction refund claim to the extent admissible on merits - Section
11B of Central Excise Act, 1944 as applicable to Service Tax vide Section 83 of
Finance Act, 1994. [paras 6, 7, 8]
Appeal allowed
CASES CITED
Commissioner v. Divis Laboratories Ltd. — 2014 (36) S.T.R. 398 (Tribunal) — Relied on .............. [Para 3]
HPL Power Systems Ltd. — Final Order Nos. A/31220-31221/2018, dated 28-9-2018
by CESTAT, Hyderabad — Relied on ............................................................................................ [Para 3]
LNG Security Services Pvt. Ltd. v. Commissioner
— 2017 (5) G.S.T.L. 291 (Tribunal) — Distinguished ..................................................... [Paras 4, 6, 7]
M.S. Metals v. Commissioner — 2017 (345) E.L.T. 113 (Tribunal) — Distinguished ........... [Paras 4, 6, 7]
PNC Construction Co. Ltd. v. Commissioner
— 2009 (247) E.L.T. 345 (Tribunal) — Distinguished ..................................................... [Paras 4, 6, 7]
REPRESENTED BY : Shri D.V. Subha Rao, Consultant, for the Appellant.
Shri A.V.L.N. Chary, AR, for the Respondent.
[Order]. - This appeal is filed against Order-in-Appeal No. VIZ-EXCUS-
002-APP-079-18-19, dated 29-6-2018. The appellant is an SEZ developer regis-
tered with the Service Tax department. They have received certain services dur-
ing the course of their operations and had filed refund claim for the Service Tax
paid on these services under Notification No. 17/2011-S.T., dated 1st March,
2011. After examining the refund claim, the adjudicating authority has found
that of the amount of Rs. 10,26,812/- claimed by the appellant on merits they are
eligible for a refund of only Rs. 2,26,530/-. Further, he found that the refund
claim has been filed beyond the period of one year stipulated in the Notification
No. 17/2011. Para 3 of this Notification reads as follows :-
“claim for refund should be filed, within one year from the end of the man-
ufacturing in which actual payment of Service Tax was made by such de-
veloper or unit to the registered service provider or such extended period
as the Assistant Commissioner of Central Excise or the Deputy Commis-
sioner of Central Excise as the case may be, shall permit;”
2. The Learned Adjudicating Authority has found that the appellant
had not produced sufficient grounds for him to exercise his discretion and con-
done the delay of almost 3 years in filing the refund claim. Accordingly, he re-
jected the refund claim in toto including what he held to be admissible on merits.
Aggrieved, the appellant appealed to the first appellate authority, who, by the
impugned order, upheld the order of the lower authority. Hence this appeal.
3. Learned Counsel for the appellant submit that they are not disputing
the amounts which were held to be ineligible for refund on merits but are disput-
ing the rejection of refund claim on the ground of limitation of time when the
Assistant Commissioner/Deputy Commissioner had the discretion to condone
such delay. He would submit that during the period they had several setbacks in
their factory and were also referred to BIFR at one point of time. As a result of
this, they were not able to pursue all Service Tax matters actively and claim re-
fund in time. He would show the details of the bills on which they have claimed
refund and would submit that the delay in filing the refund claim as detailed in
GST LAW TIMES  2nd July 2020  175