9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (10) TMI 837 - AT - Service TaxRefund of service tax paid - refund claimed on the ground that he is not liable to pay the service tax and the service tax paid by him is to be considered as a deposit - CBEC Circular No. 108/02/2009-ST dated 29.1.2009 - Held that - On an identical issue, the Division Bench of this Tribunal in JOSH P JOHN AND OTHERS VERSUS CST, BANGALORE AND OTHERS 2014 (9) TMI 597 - CESTAT BANGALORE has disposed of 121 appeals by remanding the same to the original authority with directions to be considered while processing the refund claim of the assessees - appeal of the appellant allowed by way of remand to the original authority to consider the issue afresh in the light of the directions of the Division Bench in bunch of appeals - appeal allowed by way of remand.
Issues:
Refund claim rejection based on circular | Appeal against remand order | Applicability of service tax | Limitation grounds for appeal Refund claim rejection based on circular: The appellant filed a refund claim challenging the service tax collected by the developer during the construction of a residential flat. The original authority rejected the refund claim citing a circular issued by CBEC. The Commissioner (A) remanded the matter back to the original authority for a speaking order. The appellant contested this decision, arguing that the impugned order was contrary to legal principles and binding judicial precedents. The appellant requested an open remand to consider all issues afresh, similar to a previous Division Bench decision. The Tribunal examined the issue and referred to a previous order remanding 121 appeals to the original authority for processing refund claims, emphasizing the need to follow guidelines for deciding refund claims. The Tribunal allowed the appeal by remanding the matter to the original authority for reconsideration in line with the directions provided by the Division Bench. Appeal against remand order: The appellant challenged the remand order issued by the Commissioner (A) after the original authority rejected the refund claim. The appellant argued that the impugned order was not sustainable in law, lacked proper appreciation of facts and law, and contradicted binding judicial precedents. The appellant cited a Division Bench decision and other legal cases to support their position. The Tribunal considered the submissions of both parties and noted the Division Bench's detailed order remanding similar matters to the original authority for fresh consideration. Following the principles laid down in the previous decision, the Tribunal allowed the appeal by remanding the case to the original authority for a reevaluation of the refund claim. Applicability of service tax: The case involved the applicability of service tax in relation to the construction of a residential complex. The appellant contended that they were not liable to pay the service tax collected by the developer during the construction process and sought a refund, treating the amount paid as a deposit. The Tribunal examined the relevant provisions of the Finance Act, 1994, defining the service in question and the scope of "construction of complex." The appellant's claim for refund was initially rejected based on a circular, leading to the appeal and subsequent remand orders. The Tribunal considered the legal aspects and previous decisions while allowing the appeal by remanding the matter for fresh consideration. Limitation grounds for appeal: The appellant raised objections regarding the limitation aspect in the Commissioner (A)'s order, which upheld the original authority's decision on limitation grounds. The appellant challenged this observation and filed the present appeal against it. The Tribunal reviewed the arguments presented by both parties and referred to a Division Bench decision that provided guidelines for deciding refund claims and remanding matters to the original authority. Following the principles outlined in the previous decision, the Tribunal allowed the appeal by remanding the case for a reevaluation, emphasizing the need to consider all issues afresh, including any limitation aspects.
|
