2018 (11) TMI 1812 - AT - Service Tax

Refund of Service Tax paid - maintenance or repair service - construction of residential complex service - rejection of refund on the ground of limitation provided under Section 11B of the Central Excise Act 1944 - rejection also on the ground that that during the disputed period the appellant had provided maintenance and repair service to the perspective flat owners and that there was no excess payment of service tax on the MSEB charges. Time Limitation - HELD THAT - The refund application was initially filed by the appellant online on 19/08/2012 which was returned by the department and subsequently re-submitted along with requisite documents on 19/12/2012 by the appellant. It is evident that the refund application filed online in the ACES computer system was accepted and receipt of the same was acknowledged by the department on 19/08/2012 - For the purpose of computation of limitation period for entertaining the refund application Section 11B ibid provides that the application should be filed within one year from the relevant date - In this case refund application filed online was not rejected by the department and the same was returned to the appellant for re-submission after enclosing the relevant data/particulars. As per the statutory provisions the date of re-submission of refund application should not be considered as the relevant date for computation of the limitation period. Refund of service tax paid on maintenance and repair service - HELD THAT - There are no evidence that the appellant had provided any service for repair and maintenance of the flats belonging to the flat owners. Thus in the absence of any provision of service mere acceptance of deposit by the appellant will not subjected to levy of service tax under the taxable category of repair or maintenance service. Thus the service tax simultaneously paid by the appellant should be eligible for refund. Refund on the ground of double payment of service tax by the appellant on MSEB deposit - HELD THAT - The appellant had not produced any documentary evidence either before the original authority or before the Commissioner (appeals) and accordingly the refund claims were denied. Since the onus entirely lies with the appellant to produce evidence regarding twice payment of service tax on MSEB deposit which are not being satisfactorily explained by the appellant the rejection of refund benefit on such ground is sustainable. Considering the submissions of the appellant that it can produce evidences regarding payment of service tax twice on MSEB deposit the matter should be remanded to the original authority for verification of such documents and for proper fact finding whether the amount has been paid twice by the appellant. Appeal allowed by way of remand.

Issues Involved:
1. Rejection of refund claim for service tax paid on maintenance or repair service and construction of residential complex service.
2. Computation of limitation period for entertaining the refund application.
3. Eligibility for refund of service tax on maintenance and repair service.
4. Claim for refund on the ground of double payment of service tax on MSEB deposit.

Analysis:

Issue 1: Rejection of Refund Claim
The appellant filed a refund application for service tax paid on maintenance or repair service and construction of residential complex service. The application was initially filed online on 19/08/2012 and resubmitted with requisite documents on 19/12/2012. The original authority rejected the refund application citing limitation under Section 11B of the Central Excise Act, 1944. However, the Tribunal observed that the date of resubmission should not be considered for limitation computation. Citing legal precedents, the Tribunal held that the initial date of filing the refund application electronically should be considered, not the resubmission date. Therefore, the rejection of the refund application on the ground of limitation was deemed improper and unjustified.

Issue 2: Eligibility for Refund of Maintenance and Repair Service
The appellant claimed refund for service tax paid on maintenance and repair service. The Commissioner (Appeals) upheld the rejection based on an agreement clause. However, the Tribunal noted that the appellant provided evidence that no maintenance service was provided, and the deposit amount was reflected in the balance sheet. The Tribunal found no evidence of service provision in the agreement and concluded that the service tax paid should be eligible for a refund as no taxable service was provided.

Issue 3: Double Payment of Service Tax on MSEB Deposit
The appellant sought a refund for double payment of service tax on MSEB deposit. Lack of documentary evidence led to denial of the refund claim. The Tribunal held that the burden of proof rested with the appellant, and without satisfactory explanation, the rejection was justified. However, considering the appellant's claim of producing evidence, the matter was remanded to the original authority for verification of documents to determine if double payment occurred.

In conclusion, the Tribunal sustained the refund application based on limitation, deemed the service tax on maintenance and repair service eligible for refund, and remanded the issue of double payment of service tax on MSEB deposit for further verification.

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