2017 (10) TMI 615 - AT - Service Tax

Refund claim - Rule 6 of CCR, 2004 - whether compliance of Rule 6(3) of CCR, 2004 was made or not by the service provider has no bearing on the refund? - Held that - even if it is not the case of refund but if the service is provided and service provider does not comply with the Rule 6, recovery cannot be made from the service recipient. In such case action for recovery of any dues, action under statute to be taken against service provider. Taking into account all these facts, refund of service tax which was born by the appellant cannot be affected - refund of service tax which was born by the appellant cannot be affected - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Applicability of Rule 6 of Cenvat Credit Rules, 2004 in a refund claim.
2. Whether non-compliance of Rule 6 by the service provider affects the refund claim of the recipient.

Analysis:
1. The case involved a Charitable Education Trust filing a refund claim for service tax paid to a construction service provider, M/s. Man Infra Construction Limited. The refund was initially sanctioned but challenged by the Revenue, leading to the Ld. Commissioner (Appeals) directing a re-examination of Rule 6 of Cenvat Credit Rules, 2004. The appellant appealed this decision, arguing that compliance with Rule 6 by the service provider should not impact their refund claim.

2. The appellant's counsel contended that the Ld. Commissioner (Appeals) erred in remanding the matter for verification of Rule 6 compliance by the service provider. The counsel emphasized that the appellant had paid service tax erroneously, and any non-compliance by the service provider should not affect the refund claim. Citing relevant case law and a Board Circular, the appellant argued that denial of refund based on the service provider's compliance was unwarranted.

3. In the judgment, the Member(Judicial) noted that the central issue was whether the appellant, as the service recipient, should bear the consequences of the service provider's non-compliance with Rule 6. The Member emphasized that the appellant had paid the service tax in good faith and should not suffer due to the service provider's lapses. Referring to the Board Circular, the Member concluded that the appellant's refund claim should not be denied based on the service provider's actions. Therefore, the impugned order was set aside, and the appeal was allowed, ensuring the appellant's right to a refund was upheld.

This detailed analysis of the judgment addresses the issues raised, the arguments presented by both sides, and the reasoning behind the final decision, ensuring a comprehensive understanding of the legal aspects involved in the case.