Refund claim not time-barred being last day of filing is government holiday
- The Appellant from its SEZ unit, was providing the Information Technology Service and Business Support Service.
- The Appellant filed a refund claim amounting to Rs. 1,35,05,787/- under Notification No. 12/2013-ST dated 01.07.2013 however refund amounting to Rs. 94,35,098/- was sanctioned by the Assistant Commissioner while passing the adjudication order i.e., Order-in-Original No. 218/Refund/Viman Nagar/Central GST/2018-19, and refund of Rs. 40,70,698/- for the period April, 2017 to June, 2017 was rejected on the ground that the refund application was not filed within in one year as per the said Notification and was not made before 30th April, 2018.
- Being aggrieved an appeal was preferred against the said order but no relief was granted to the Appellant.
Appellant’s Plea: –
- It was submitted on behalf of the Appellant that as per clause 3(iii)(e) of the said notification prohibition for filing such a refund application beyond one year is not absolute and is discretionary for the Assistant Commissioner to extend the period.
- Clause 2 Section 10 of the General Clause Act, 1897, applicable to all Central Acts except those are governed by the Indian Limitation Act 1877, makes it abundantly clear that any Act of Proceeding directed or allowed to be done in any Court or Office on a certain day or within a prescribed period and if the same is closed on the last day of prescribed period, the act and proceeding shall be considered as done or taken in due time if done on the next day afterwards on which the Court or Office is open.
- That clause 3 of Section 51 of SEZ Act, 2006 has an overriding effect, thus the limitation contained in Notification 12/2013-ST cannot restrict the filing of refund.
- Further the Appellant relying on AIR 1957 SC 271, 2003 (156) E.L.T. 945 (Bom.), 2004 (177) E.L.T. 395 (Tri. Mumbai), 2012 (27) S.T.R 20 (Tri-Del), 2020 (38) G.S.T.L. 92 (Tri – Hyd.), 2019 (31) G.S.T.L. 596 (A.P.), 2021 (54) G.S.T.L. 37 (Tri- Chennai), urged for setting aside the impugned order.
Respondents Arguments: –
- It was argued on behalf of the respondents that the discretionary powers can only be exercised in case sufficient cause is shown.
- That in the instant cast the limitation ends on 29.04.2018 and 30.04.2018 being a holiday would have no effect as contained in Section 10 of the General Clauses Act.
- That overriding effect of SEZ Act cannot delimit the conditions in Notification 12/2013 – ST to seek refund.
- The Hon’ble Tribunal after considering the submissions from the both sides and case laws referred, and without going into merits of case as well as the legal contentions raised on behalf of the Appellant, took note of the law stated in Section 10 of the General Clauses Act, 1897.
- Further based on the said analysis of law it was observed that, admittedly as per the adjudication order and the impugned order-in-appeal the last date of filing the refund application was before 30.04.2018 i.e., 29.04.2018, though the same is not absolute but discretionary on the part of refund sanctioning authority.
- The Hon’ble Bench after examining the English calendar of year 2018 noticed that 28th and 29th April, 2018 were weekends and 30.04.2018 was Government Holiday.
- The Hon’ble CESTAT considering the facts of the case, held that the impugned order rejecting the refund claim solely on the ground of limitation is not sustainable.
The Hon’ble CESTAT with the above findings set aside the order of Commissioner of Central Tax (Appeals-I), Pune in Order-in-Appeal No. PUN /EXCUS /001 /APP /654 /2018- 19 dated 14.02.2019 and allowed the appeal with consequential relief with a direction to sanction the refund withing 3 months of the receipt of the order.