2016 (9) TMI 1281 - AT - Service Tax

Refund claim - rejection on the ground that Board Circular No.108/2/2009 dated 29.1.2009 is not applicable - whether the applicant who is a purchaser of an apartment/flat/residence from a builder or a developer is entitled to claim refund of service tax paid by him to the builder on the ground that service tax was not taxable before 1.7.2010? Held that - this case needs to be remanded as other three appeals involved in the impugned order have already been remanded vide Final Order No.21349-21469/2014 dated 20.8.2014 - appeal allowed by way of remand.

Summary

Issues Involved:
1. Entitlement of a purchaser to claim refund of service tax paid to a builder.

Analysis:
The appeal in question was filed against the Order-in-Appeal upholding the Order-in-Original, where the refund claim of an individual purchaser of a flat from a builder was rejected on the grounds that a specific Board Circular was not applicable to the case. The central issue revolved around whether the purchaser could claim a refund of service tax paid to the builder, considering the tax was not applicable before a certain date. The Tribunal noted that similar cases had been remanded previously for reconsideration of refund claims. The Tribunal emphasized the need for evidence showing that the service tax liability was borne by the claimant and not passed on to others, rather than requiring a bill or invoice. The Tribunal provided detailed guidelines for deciding refund claims, emphasizing the importance of specific documents and details to be submitted by the claimants within a specified timeframe.

The Tribunal clarified that the limitation aspect should not be revisited if no appeal was filed by the Revenue in specific cases, and set aside all impugned orders, remanding the matters back to the original adjudicating authority. The Tribunal directed the claimants to submit necessary documents within three months and instructed the adjudicating authority to inform claimants of any additional requirements before rejecting refund claims. The Tribunal also highlighted the obligation to pay interest in accordance with the law from three months after filing the refund claim, where applicable. The case was remanded back to the original authority for a fresh decision on the refund claim, with a requirement to issue a notice, follow principles of natural justice, and provide a reasoned order. Consequently, the appeal was allowed by way of remand.

In conclusion, the judgment addressed the specific issue of entitlement to claim a refund of service tax paid by a purchaser to a builder, providing detailed guidelines and instructions for reconsideration of refund claims by the original adjudicating authority. The Tribunal emphasized the importance of specific evidence and documentation, timelines for submission, and the obligation to pay interest in applicable cases. The decision aimed to ensure a fair and thorough review of refund claims in line with legal provisions and principles of natural justice.