2017 (3) TMI 1953 - AT - Service Tax

Refund of service tax - it is submitted that the hearing in the present appeal took place on 5.10.2010 whereas the decision was given by the Commissioner (Appeals) on 7.6.2016 after around 6 years hearing - HELD THAT - This case needs to he remanded back to the original authority with a direction to consider whether the incidence of tax has not been passed to the buyer. The original authority will also consider all the documents which may be produced by the appellant including the C.A's certificate, agreement between the appellant and his buyer and any other documents which the appellant may produce to prove the eligibility of refund. With this the impugned order is set aside and the case is remanded back to the original authority to pass a de novo order. Appeal is allowed by way of remand.

Summary

Issues:
- Appeal against dismissal of refund application for service tax paid on construction of residential complexes
- Consideration of whether tax incidence passed on to buyers
- Need for remand to original authority for further consideration and assessment

Analysis:
The appeal was filed against the dismissal of a refund application for service tax paid on the construction of residential complexes. The appellant, a registered service tax assessee engaged in construction, sought a refund based on a previous order dropping the service tax demand on such constructions. The appellant claimed a refund of Rs. 8,13,720/-, which was rejected on the grounds of unjust enrichment. The Commissioner (Appeals) upheld the rejection, citing lack of evidence that the tax burden was not passed on to the buyers.

During the hearing, the appellant argued that the impugned order failed to consider relevant legal decisions and Board Circulars. The delay in issuing the decision after the hearing was also highlighted. The appellant contended that all necessary documents, including a Chartered Accountant's certification, were provided to prove that the tax burden was not transferred to the buyers. However, the Commissioner (Appeals) did not adequately consider this evidence, leading to the decision being challenged.

Upon reviewing the submissions and records, the Member (J) found merit in the appellant's argument regarding the need to ascertain whether the tax burden was indeed passed on to the buyers. Consequently, the case was remanded back to the original authority for a fresh assessment. The original authority was directed to thoroughly examine all documents presented by the appellant, including the Chartered Accountant's certificate and agreements with buyers, to determine the eligibility for a refund. The impugned order was set aside, and the appeal was allowed for remand.

The operative portion of the order was pronounced in open court on 15/03/2017, marking the decision to remand the case for further consideration and assessment by the original authority.