2016 (9) TMI 791 - AT - Service Tax

Refund claim - evidence of payment of service tax to the builder - applicant is a purchaser of an apartment/flat/residence from a builder or a developer - Period of limitation - Held that - in view of the findings of the Tribunal in the case of Josh P John and others Vs. CST, Bangalore and others 2014 (9) TMI 597 - CESTAT BANGALORE , this case is remanded back to the original authority who will decide the refund claim. The original authority will issue the notice before disposing of the case and after following the principles of natural justice, will pass a reasoned order. - Appeal allowed by way of remand

Summary

Issues Involved:
- Appeal against Order-in-Appeal upholding Order-in-Original for refund claim rejection
- Entitlement of purchaser of flat to claim refund of service tax paid to builder
- Remand for considering refund claim afresh based on previous Tribunal orders

Analysis:

Issue 1: Appeal against Order-in-Appeal upholding Order-in-Original for refund claim rejection
The appeal was directed against the Order-in-Appeal dated 20.9.2012, where the Commissioner upheld the Order-in-Original while disposing of five appeals. Four appeals were previously remanded to the original authority to reconsider the refund claim based on observations made in those appeals. The appellant, an individual who purchased a flat, applied for a refund on 20.4.2009. The refund was rejected citing lack of evidence of service tax payment, absence of supporting documents, and being partially time-barred under Section 11B of the Act. The appellate authority also upheld the Order-in-Original, leading to the present appeal.

Issue 2: Entitlement of purchaser of flat to claim refund of service tax paid to builder
The main issue in the appeal was whether a purchaser of a flat from a builder could claim a refund of service tax paid, especially considering that service tax was not taxable before 1.7.2010. The Tribunal considered previous remands of similar cases and emphasized the need for evidence showing that the person claiming the refund bore the service tax liability and did not pass it on to others. The Tribunal clarified that the presence of specific documents, such as the service provider's registration details, proof of service tax payment, and a statement from the developer confirming tax payment, would be sufficient to support the refund claim.

Issue 3: Remand for considering refund claim afresh based on previous Tribunal orders
The Tribunal referred to a Final Order dated 20.8.2014 involving multiple appeals by flat purchasers and highlighted specific paragraphs providing guidelines for deciding refund claims. It was emphasized that the original adjudicating authority should consider the refund claim afresh in line with the Tribunal's observations. The appellants were directed to submit necessary documents within three months, and the authority was instructed to inform the appellants of any additional requirements before rejecting the claim. Interest on refunds, where applicable, was also mandated to be paid in accordance with the law.

In conclusion, the Tribunal allowed the appeal by remanding the case back to the original authority for a fresh decision on the refund claim, following the guidelines and principles outlined in the previous Tribunal orders.