2018 (9) TMI 388 - AT - Service Tax

Refund Claim - whether the appellant have locus standi to file refund claim or not? - service tax deducted and deposited by the Housing Board on behalf of the appellant (service provider) - Held that - This issue is already settled by the judgment of the Hon ble Supreme Court in the case of Oswal Chemicals & Fertilizers Ltd. 2015 (4) TMI 352 - SUPREME COURT , where it was held that the appellant who had paid the excise duty to the manufacturer, viz., M/s. Indian Oil Corporation Ltd. and BPCL in the instant case, had the necessary locus standi to file the application claiming the refund of the duty - It was further held in the case that Explanation (B) defines relevant date . Though this date has reference to the calculation of limitation period for the purposes of seeking refund of the duty under the aforesaid provision. However, clause (e) while stating the relevant date clarifies that in case of a person, other than the manufacturer, the date of purchase of goods by other person would be the relevant date. This itself indicates that the person can be other than the manufacturer and Explanation (B) caters to such other person. Thus, the appellant have locus standi to file refund claim in this case. Disclaimer certificate - Held that - The appellant have placed on record disclaimer certificate dt.30.1.2018 from the Housing Board Haryana in respect of their claim. The order of the Commissioner (Appeals) in the present case is dated 31.1.2018 - Admittedly, the disclaimer certificate was not produced before the Commissioner (Appeals) when the impugned order was passed. It would therefore be appropriate to set aside the impugned order and remand the matter to the first appellate authority so that he can examine the issue afresh by taking into account the disclaimer certificate dt.30.1.2018. The matter is remanded back to the Commissioner (Appeals) with the direction to consider the disclaimer certificate dt.30.1.2018 issued in favor of the appellant issued by the Housing Board Haryana and to pass a fresh order in accordance with law - appeal allowed by way of remand.

Summary

Issues:
1. Locus standi to file refund claim
2. Merits of the case regarding the disclaimer certificate

Analysis:

1. Locus standi to file refund claim:
The appellant filed a refund claim after the Housing Board, Haryana (HBH) deducted service tax from their bills. The Commissioner (Appeals) rejected the claim, stating the appellant had no locus standi as service tax was paid by HBH. However, the Hon'ble Supreme Court's judgment in Oswal Chemicals & Fertilizers Ltd. clarified that any person who has borne the duty incidence can claim a refund. The appellant's eligibility to file a refund claim was supported by this judgment. Additionally, the department had entertained a similar contractor's refund claim, indicating inconsistency in rejecting the appellant's claim based on locus standi. The rejection on this ground was deemed untenable.

2. Merits of the case regarding the disclaimer certificate:
The appellant presented a disclaimer certificate from HBH after the Commissioner (Appeals) issued the order. As the certificate was not considered during the initial proceedings, the Tribunal decided to set aside the impugned order and remand the case to the Commissioner (Appeals). The direction was to reevaluate the case, taking into account the disclaimer certificate issued by HBH. The Tribunal emphasized the need for a fresh order considering this new evidence and ensuring the appellant's fair opportunity to present their case. The appeal was disposed of by remanding the case for further examination.

In conclusion, the Tribunal upheld the appellant's locus standi to file a refund claim and directed a reevaluation of the case based on the disclaimer certificate provided by HBH. The judgment highlighted the importance of following legal precedents and allowing parties a fair chance to present their case in matters of tax refunds and contractual disputes.