2018 (2) TMI 483 - AT - Service Tax

Refund claim - amount received in advance - Held that - The order of this Tribunal in the case of Partibha Consturction, Engineers and Contractors India P Ltd 2010 (12) TMI 331 - CESTAT, MUMBAI has neither been stayed nor has been set-aside by the higher forum. In that circumstances, authorities below are bound to accept the order of this Tribunal which the adjudicating authority did but, the Ld. Commissioner (A) has violated the judicial principle which is binding on him and had passed the order without going into the merits of the case - refund allowed - decided in favor of appellant.

Summary

Issues:
Refund claim rejection by Ld. Commissioner (A) despite Tribunal decision in favor of appellant.

Analysis:
The appellant, a builder, sells flats after receiving advances and paying service tax on the advance amounts. When a prospective buyer cancels the purchase agreement, the advance along with service tax is refunded. The appellant filed a refund claim which was sanctioned by the adjudicating authority based on a Tribunal decision. However, the Ld. Commissioner (A) rejected the refund claim, stating that the Revenue did not accept the Tribunal decision. The appellant appealed, arguing that the Ld. Commissioner (A) violated the binding judicial principle by not considering the Tribunal decision. The Tribunal noted that the Tribunal decision in question was not stayed or set aside by a higher forum. Therefore, the authorities were obligated to follow the Tribunal decision. The Ld. Commissioner (A) was found to have passed the order without merit, leading to the order being set aside. Consequently, the adjudication order sanctioning the refund was confirmed, and the appeal was disposed of accordingly.