2024 (6) TMI 710 - AT - Service Tax

Rejection of refund claim based on classification of service - Appellants have taken the view that the service provided by the service provider is not that of renting of immovable property , but it is that of construction services - HELD THAT - The Appellant is not allowed to question the classification adopted by the service provider. The service provider in this case has treated the service as renting of immovable property and has collected the Service Tax @ 12.36% (as per the Appellant himself) and has also filed the ST-3 Returns accordingly with their jurisdictional office. The service provider has, at no point of time claimed that this has been done by him by way of mistake and actually they are providing only the service of construction of commercial property . In such a case, the Appellant as a recipient of service is precluded from agitating the classification adopted by the service provider to claim the present refund. As a matter of fact, the refund cannot be claimed by him and the Appeal basically fails on this count itself. Both the lower authorities have clearly held that no evidence in a proper form has been provided by the Appellant to satisfy these queries and the Adjudicating Authority has rejected their refund claim on this ground and even the lower Appellate Authority has dismissed their Appeal only on this ground. The request for remanding the matter to the Adjudicating Authority is rejected - appeal dismissed.

Summary

Issues involved: Refund claims rejection based on classification of service u/s Notification No. 26/2012, failure to prove non-availment of Cenvat Credit, and lack of documentary evidence.

Refund Claims Rejection based on Classification of Service:
The Appellant contended that the service provided was "construction services" not "renting of immovable property" and sought refund based on Notification No. 26/2012. However, lower authorities rejected claims as Appellant failed to prove service provider's non-availment of Cenvat Credit. Tribunal held Appellant cannot dispute service classification chosen by provider, as evidenced by Lease Agreement and invoices. Lack of evidence supporting Appellant's claim led to dismissal of Appeals.

Failure to Prove Non-Availment of Cenvat Credit:
Adjudicating Authority and Commissioner (Appeals) found Appellant unable to demonstrate service provider's non-availment of Cenvat Credit, a prerequisite under Notification No. 26/2012. Appellant's inability to show payment of Service Tax by provider and inclusion of land cost in total consideration led to rejection of refund claims. Lack of supporting documents and failure to verify tax liability resulted in dismissal of Appeals.

Lack of Documentary Evidence:
Appellant's refund claims were rejected due to absence of documents proving taxable value, Service Tax liability, and payment details. Appellant, a non-assessee, failed to provide necessary documentation for verification. Despite claiming excess payment of Service Tax, Appellant could not substantiate their case with required proof. Lower authorities emphasized the need for supporting documents, leading to dismissal of Appeals.

Conclusion:
Tribunal upheld lower authorities' decisions, emphasizing Appellant's failure to provide essential evidence supporting refund claims. Appellant's challenge to service classification chosen by provider was deemed invalid, as statutory provisions did not permit service recipient to dispute such classification. Request for remand to verify tax payment was rejected, and Appeals were dismissed in line with previous decision on identical facts.