2019 (5) TMI 1412 - AT - Service Tax

Refund of service tax - refund was rejected on the ground that the service provider might have taken the cenvat credit and in such case whether service provider has followed the Rule 6 of Cenvat Credit Rules 2004 in respect of exempted services provided by him - HELD THAT - The observation of the lower authority is absolutely irrelevant for the reason that as regard assessment of the service provider it is Jurisdictional Officer who should take care of any such non-compliance on the part of service provider, therefore, on that ground appellants refund, who are not concerned about the availment of cenvat credit and compliance of the Rule 6, therefore, on this ground refund could not have been rejected. The matter needs to be reconsidered by the original authority - appeal allowed by way of remand.

Summary

Issues:
Refund claim for service tax paid on purchase of flat rejected due to lack of certain documents.

Analysis:
The case involved a refund claim by buyers of flats who had paid service tax to the builder, seeking a refund after a Delhi High Court judgment clarified that no tax liability existed on the sale-purchase of flats. The lower authorities rejected the claim citing missing documents like ST-3 returns and payment particulars of the service provider. The buyers argued that they had receipts and a certificate from the service provider confirming payment and collection of service tax, as they did not have access to all the provider's records. The buyers contended that the certificate and sale agreement were sufficient for the claim, referencing a previous tribunal order supporting their stance.

The Assistant Commissioner representing the Revenue upheld the findings of the impugned order, emphasizing the necessity of the documents demanded by the lower authorities. However, the Member (Judicial) highlighted that the buyers had indeed borne the service tax liability, as evidenced by the documents submitted, and were entitled to a refund. The Member criticized the insistence on additional documents not under the buyers' control, suggesting that the refund could be processed based on the submitted evidence. The Member proposed verifying the payment through the buyers' bank statement and the service provider's registration status, dismissing the relevance of the service provider's compliance with Cenvat Credit Rules for the buyers' refund claim. Consequently, the Member set aside the impugned orders, remanding the matter for reconsideration by the original authority with specific instructions to reprocess the refund claim based on the observations made.

In conclusion, the appellate tribunal allowed the appeals by remanding the case to the adjudicating authority for a fresh decision, emphasizing the buyers' entitlement to a refund based on the evidence provided and dismissing the requirement for additional documents beyond their control.