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TMI Blog2024 (6) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... sification 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. - HON BLE MR. R. MURALIDHAR, MEMBER (JUDICIAL) APPEARANCE : For the Appellant : Mr. Rajeev Agarwal, Advocate. For the Respondent : Mr. P. K. Ghosh, Authorized Representative. PER R. MURALIDHAR: In respect of similar set of facts, this Bench has already passed Final Order No. 75386-75389/2024 dated 27/02/2024 holding that the refund claims have been correctly rejected by the lower Authorities. Accordingly, the Appeals were dismissed. In the present case, the facts are identical emanating from the same Lease Agreement entered into with the Rajarhat IT Park Ltd. (lessor) and the present Appellant (lessee). Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has dismissed their Appeal. 5. I had gone through the Agreement of Lease of Rajarhat IT Park Ltd. when deciding the earlier Appeal on identical issue wherein the present Lease Deed was involved. I find that it is a pure Lease Agreement. Nowhere, is it specified that it is a part of any Sale Agreement or Sale Deed. On going through the receipts issued by Rajarhat, it is seen that they have simply mentioned the amount collected by them without mention of any Service Tax component or Service Tax registration taken by the service provider. 6. I find that the Appellant has been charged Service Tax by the service provider under the heading of renting of immovable property for the Lease Agreement entered with them. However, the Appellant has taken a different stand stating that the service provided by the service provider is that of construction of commercial complex . In that case, the service provider should have been granted the abatement of 70% in terms of Sl. No. 12 of Notification 26/2012-ST dated 20/6/2012. The Appellant being the service recipient, I take the view that the Appellant is not allowed to question the classification adopted by the service provider. The service provider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilder did not accept their argument and collected S. Tax from them on the entire value of the Flat, even though S.T. is payable on the 30% of the value as per the Notification No. 26/2012- ST dated 20.06.2012, as amended by the Notification No. 02/2013-ST dated 01.03.2013. He stated that since they have paid the S. Tax to the builder at a higher rate, they requested this office to refund the excess amount of S. Tax paid by them. Regarding assessment of taxable value of the builder M/s Rajarhat IT Park, Kolkata and payment of the S. Tax amount to the Govt. Account, the claimant stated that they have no documents to show. He also stated that they have produced the copies the demand-cum-service Invoice of the builder as proof of payment of S. Tax to the builder at higher rate as raised, which shows collection of S. Tax at 12.36% by the Builder (M/s RITP) from the claimant. They requested for 7 (seven) days' time to make a written submission in this regard and requested to sanction the refund. But so far no further written submission has been made by the claimant in this regard. 2.4 I find that the claimant has not submitted any document relating to the taxable value, Service Tax l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Service Tax payable along with the copies of all 5T-3 returns filed during the period and proof of payment of Service Tax made to the government account in proper head (challan copies) etc, in support of their refund claim for verification of any payment /excess payment of Service Tax to the government account by the claimant. The appellant also mentioned that they are a non-assessee and claimed refund excess paid S. Tax by them as a Customer. They admitted that they do not have any documents to show that the S. Tax amount collected from them, has been paid by the builder M/s. RITP to Govt. Account. The appellant has stated that S. Tax should have been collected from them by the Builder at lesser value after availing abatement as per the Notification No. 26/2012-ST dated: 20.06.2012, amended by the Notification No. 02/2013-5T dated 01.03.2013, which has not been done by the builder. It appears from the Notification that the exemption given in the said Notification is conditional and is subject to fulfillment of the conditions given therein. In terms of 51. No. 12 of the amended Notification No. 02/ 2013-ST dated 1.3.2013 w.e.f .1.3.2013 the entries thereto reads as: In the insta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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