The question of unjust enrichment would not arise when the request for reimbursement is time-barred: CESTAT

refund request - CESTAT - taxscan

The Customs, Excise and Service Taxes Appeals Tribunal (CESTAT), Allahabad Court held that the issue of unjust enrichment would not arise where the claim for reimbursement is time-barred.

The appellant, M/s. Krishna Construction Co is a partnership company engaged in the construction of complexes for the government, local authority or governmental authority. The appellant availed himself of the exemption from payment of service tax under listing no. 12 of the Notification of 20.06.2012 relating to the construction service provided to the Government or to a governmental authority. However, the above exemption was reinstated in a further amendment to the notification of 20.06.2012, by inserting entry no. 12A in the Notification of 01.03.2016.

Thus, the service tax was due during the period from 01.04.2015 to 29.2.2016 on those services provided to the government, local authority or governmental authority. Subsequently, Article 102 (1) was introduced by the Finance Bill 2016 to provide for a retroactive exemption from construction service for the period from 01.04.2015 to 29.02.2016.

The Appellant, as per the above retroactive amendment, filed a claim for reimbursement of Rs. 72,96,702/- for the period of 01.04.2015 to 29.02.2016. The Department found defects in the said application for reimbursement and returned it to the appellant. The Appellant resubmitted the completed refund application.

The appellant appealed to the Commissioner (Appeals), but the Commissioner (Appeals) dismissed by order the claim for reimbursement on the grounds of limitation and unjust enrichment only.

The bench consisting of Judge Dilip Gupta, President, and P Anjani Kumar, Technical Member, observed that “the contention of counsel for the appellant that since the one-year statute of limitations provided for in Article 11B of the Central Excise Act 1944, provides for the filing of the claim within one year from the date of payment of the tax, the claim for refund filed by the appellant is to be regarded as having been filed on time because it was filed within one year also cannot be accepted on the grounds that Article 102 (1) of the Finance Act itself provides for a limitation period of six months to file a claim for reimbursement.

“Once the refund claim is deemed time-barred, the issue of unjust enrichment will not arise,” the court ruled.

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Ms. Krishna Construction Co v Commissioner of Central Goods and Services Tax

Counsel for the Appellant: Shri Rajnish Kumar Varma

Counsel for the Respondent: Shri Madhukar Anand



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