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TMI Blog2023 (2) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... the Deputy Commissioner (refund) stating therein that they have not adjusted the amount of Rs.3,34,800/- paid towards service tax / advance service tax on amounts received from appellant-claimant under the provisions of Rule 6(3) and that the advance paid by the appellant-claimant amounting to Rs.24,00,000/- has been refunded on cancellation of booking of the said flat and in support of the declaration the builder has submitted the copies of ST-3 returns filed by them for the period April, 2016 to March, 2017 and April, 2017 to June, 2017. Admittedly, the builder has not refunded the amount of service tax to the appellant-claimant and neither he adjusted the said amount nor claimed refund in respect of the amount in issue. Therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with the copies of ST-3 returns for the period October, 2016 to March, 2017 and April, 2017 to June, 2017, it is clearly established that the service tax liability has been discharged by the builder. Appeal allowed. - Service Tax Appeal No. 85075 of 2020 - FINAL ORDER NO. A/85056/2023 - Dated:- 25-1-2023 - MR. AJAY SHARMA, MEMBER (JUDICIAL) Shri Rajeev Dinkar Waglay, Advocate for the Appellant Shri S.B.P.Sinha, Superintendent, Authorised Representative for the Respondent ORDER This appeal has been filed by the appellant challenging the order dated 17/10/2019 passed by the Commissioner of Central Tax, Central Excise and Service Tax (Appeals) Raigad by which the appeal of the appellant was rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to June, 2017. They also gave a declaration to the department that they have no objection to the refund of service tax to the appellant herein. 4. Accordingly, the appellant-claimant filed the refund claim on 08.05.2018 u/s. 11B of Central Excise Act, 1944, r/w section 83 of Finance Act, 1994, in her name for refund of Service Tax of Rs.3,34,800/-. But as per the department, from the calculation chart submitted by the builder vide letter dated 26/12/2018 it came to notice that although the builder claims to have received Rs.3,34,800/- as service tax [Rs.1,08,000/- as service tax on Rs. 24,00,000/- and 2,26,800/- as advance service tax,] but from the ST-3 returns filed for the period October 2016, to March, 2017 the amount of Rs.2,26,8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled beyond the show cause notice. Learned Counsel also placed on record the order passed by the Adjudicating Authority on identical facts for some other claimant namely Ms. Pramila Shridhar of the same builder, in which the said authority vide Order-in-Original dated 11/06/2018 sanctioned the amount as claimed therein by the said claimant by referring to the law laid down by the Hon ble Supreme Court in the matter of CCE, Madras vs Addison Company Ltd; 2016 (339) ELT 177 (SC). Per contra learned Authorised Representative appearing on behalf of Revenue supported the order passed by the authorities below and prayed for dismissal of appeal. He also placed on record certain decisions which, in my considered view, are not relevant for the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant-claimant and alongwith the said declaration also copies of ST-3 returns from April, 2016 to March, 2017 and April, 2017 to June, 2017 have been attached. Vide letter dated 26/12/2018, to the Deputy Commissioner (refund), the builder has confirmed that they had made payment on service tax on advances received from appellant-claimant as per the details mentioned in the said letter and in the said communication the fact about payment of service tax of Rs.3,34,800/- has been clearly mentioned. 6.1 Admittedly, the builder has not refunded the amount of service tax to the appellant-claimant and neither he adjusted the said amount nor claimed refund in respect of the amount in issue. Therefore, the same cannot be adjusted under Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... builder in their ST-3 returns for the period 2016 to March, 2017 and therefore the said amount of Rs.2,26,800/- claimed as refund by the claimant is liable to be rejected, whereas both the authorities below have rejected the entire amount of refund of Rs.3,34,800/-. From the perusal of the builders letters / declaration dated 06/04/2018 and 26/12/2018 respectively along with the copies of ST-3 returns for the period October, 2016 to March, 2017 and April, 2017 to June, 2017, it is clearly established that the service tax liability has been discharged by the builder. Therefore in view of the facts of this case and also in view of the law laid down by Hon ble Supreme Court in the matter of Addison Company Ltd. (supra) the appellant-claimant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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