BINU TAMTA

1. The appellant is aggrieved by the impugned order No. 03/2022-23 dated 02.05.2022¹impugned order, rejecting the refund claim on the ground of limitation under section 11B (1) of the Central Excise Act, 1944.

2. The appellant was registered in erstwhile service tax law under the category of „Construction Service other than residential complex including commercial/industrial buildings or civil structure, renting of immovable property and works contract service‟. The appellant in the present matter received some advances in the year 2012 for the services agreed to be provided by the appellant to its customers. The appellant duly paid the applicable service tax on the advances received by it to the Government exchequer. However, subsequently, before giving the possession to the buyer/customers, the project of the appellant was cancelled in 2015 and the appellant initiated the process of refunding back the advances received by it from its customers/buyers.

3. After returning the amount to the customers, the appellant applied for the refund in Form – R on 29th June 2016 for the period October 2011 to September 2012, seeking refund of service tax paid to the Government exchequer on advances received towards services to be provided by the appellant in future but not provided later.

4. On remand by the Commissioner (Appeals), the adjudicating authority reaffirmed the earlier order rejecting the refund claim being time barred. The Commissioner (Appeals) has passed the order rejecting the refund claim. Hence, the present appeal has been filed.

5. The learned counsel for the appellant submits that the issue whether the refund claim can be rejected on the ground of limitation has been decided by the Tribunal in series of decisions. The learned authorized representative has very fairly accepted that the issue stands covered by these decisions in favour of the appellant.

6. Without multiplying too many decisions on the issue, we may refer to the decision of the Division Bench of this Tribunal in the case of Wave Megacity Centre Private Limited versus Commissioner (Appeals-I) Central Tax Goods and Service Tax and Central Excise, New Delhi²Final Order No.51242-43/2025 dated 27.08.2025 in S.T. Appeals No. 54979-80/2025, wherein it was observed:-

“10. The issue of refund in similar circumstances and the contentions raised by the learned Counsel have been considered in series of decisions by different learned Single Members, as referred above. The consistent view taken in all these decisions is that refund claim of service tax paid under the existing law (Central Excise Act, 1944) in respect of services not provided shall be disposed of under the existing law and has to be paid in cash, however such refund is subject to the provisions of sub-Section (2) of section 11B of CEA, which means that it is only in case of unjust enrichment that the refund amount can be denied. The refund application cannot be rejected on the ground of time bar under Section 11 B. The learned Single Member has taken support from the decision of the Apex Court in the case of Collector of Central Excise, Chandigarh versus M/s. Doaba Cooperative Sugar Mills Ltd., Jalandhar³1988 (37) ELT 487 (SC) and concluded that there is no reason to invoke section 11B and the amount needs to be refunded, notwithstanding anything, contrary in the erstwhile law. The observations have also been made that the relevant date would not be the date of payment of service tax by the appellant but the date of issuance of credit notes to its customers subsequent to cancellation of agreements for providing construction service between those customers and the appellant. Accordingly, the appeal was allowed with consequential relief.

11. We may also refer to the decision of the learned Single Member in the case of Credence Property Developers Pvt. Ltd. where the issue of refund of service tax amount which the builder has returned or refunded to the buyer