9911796707
TMI Blog2024 (1) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... d by it. As such, verification has to be done by the jurisdictional officer for non-compliance on part of the service provider, if any, and the refund claim of the petitioners could not have been denied by respondent No.3. After considering the facts and the documentary evidence, first refund claim was allowed by the respondent authority. Therefore, the second refund claim could not have been rejected on the same grounds as the orders passed by the CESTAT as well as appellate authority are binding upon the adjudicating authority being the subordinate authority. The respondent authority has not taken into consideration any of the documents made available by the petitioners coupled with the fact that first refund claim has already been allowed after the CESTAT passed the order by the Assistant Commissioner, CGST Division-VI, Ahmedabad South. The impugned orders are quashed and set aside. The respondents are directed to grant second refund claim passed by the adjudicating authority granting first refund claim along with statutory interest in terms of Section 11B of the Central Excise Act, 1944 as made applicable to the service tax vide Section 83 of the Finance Act, 1994 - Petition al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim for service tax which was paid on purchase of under construction residential property viz. Flat No.1702, C Wing, Western Heights, J.P. Road, Four Bungalows, Andheri (W), Mumbai 400 053 by the petitioners of Special Civil Application No.969 of 2023, whereas Flat No.1703 of the same Wing by the petitioners of Special Civil Application No.973 of 2023. 4.1 The said under construction property was purchased from Adani Estates Pvt. Ltd., the developer and the service provider (hereinafter referred to as the developer/service provider ). 4.2 The developer had charged and recovered service tax from the petitioners. The petitioners thereafter filed two refund claims since payments were made on two different occasions in view of the decision of the Delhi High Court in case of Suresh Kumar Bansal v. Union of India [2016 (6) TMI (192) Delhi] , wherein it is held that in absence of proper valuation mechanism, service tax cannot be charged for the construction services provided by the developer. 4.3 The petitioners of Special Civil Application No.969 of 2023 filed refund claim of Rs. 11,93,447/- on 04th October, 2016 being the first refund claim and second refund claim was filed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furcation of a value pertaining to preferential location charge it is not possible to determine the quantum of refund of Service Tax b) The Petitioners have failed to produce receipts / invoices issued by the developer c) The Petitioners have failed to produce 'No Objection Certificate' from the developer d) The decision of the Delhi High Court is applicable for the period prior to July 2012. Since, in the present case, the period is after 2012, the ratio of the aforesaid decision is not applicable. 4.7 Being aggrieved, the petitioners filed appeal before the Commissioner of Central Excise Service Tax (Appeals) who, by order dated 10th January, 2018, rejected the appeals of petitioners of both the petitions on the following ground. a) The decision of the Delhi High Court is applicable for the period prior to July 2012. Since, in the present case, the period is after 2012, the ratio of the aforesaid decision is not applicable. b) No document evidencing that service tax has been paid by the Petitioners to the service provider and that service provider has deposited tax to the government exchequer. Only a letter dated 28/09/2016 issued by the developer showing the details of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenging the second Order-in-Original dated 17th February, 2021. The appellate authority again allowed the second refund claim rejecting all the grounds raised in Order-in-Original, by order dated 29th April, 2022. 4.13 Pursuant to the order passed by the appellate authority, petitioners filed letter dated 04th July, 2022 with a request that all the supporting documents to release the second refund claim at the earliest. 4.14 The respondent-department issued show-cause notice for the third time (hereinafter referred to as the third show-cause notice ) dated 23rd August, 2022 on the following grounds. - There is no infirmity in collection of service tax by the developer as the amount of consideration has been agreed mutually between the developer and the purchaser. - As per amendment to Rule 2A of the Service tax (Determination of Value) Rules, 2006 made through the Finance Act, 2017, the developer has taken the consideration from the purchaser as per mutual agreement and hence the question of service tax refund does not arise. - The period involved in the case of Shri Suresh Kumar Bansal was prior to 2010, hence the judgment is not applicable to the present case. - The decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such fact, the department has issued the third show-cause notice on the basis of the same old grounds raising as new grounds with the sole object of denying the refund claim. It was, therefore, submitted that the third show-cause notice and the third oil are without jurisdiction and liable to be quashed and set aside. It was submitted that the petitioners are stuck in vicious circle of receiving notices one-after-another even after the matter has been decided by the appellate authority repeatedly and there is no remedy available to the petitioners since the department is issuing notices without challenging the orders passed by the appellate authority. It was submitted that once the appellate authority has decided the issue, then the adjudicating authority is bound by such decision and the second refund claim ought to have been granted by the respondent-department. 5.2 In support of his submissions, learned advocate for the petitioners relied on the decision in case of Commissioner of Income Tax v. Excel Industries Ltd. [2014 (309) E.L.T. 386 (S.C.)] , wherein the Apex Court has held that revenue cannot be allowed to flip-flop on the issue and it ought let the matter rest rather th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax would claim the refund of service tax in case it is subsequent found that service tax was paid inadvertently or in excess. It was, therefore, submitted that inspite of the service provider, service recipient has claimed refund and therefore, the matter was rightly remanded back by the Commissioner (Appeals), however the petitioner failed to submit no-objection certificate from the builder along with declaration from the builder that builder would not claim refund of the said amount etc. and therefore, the respondent adjudicating authority No.2 was constrained to pass order dated 07th October, 2022. 6.1 It was submitted that the petitioners have alternative efficacious remedy to challenge such order by preferring appeal as the same is passed upon facts and the petitioner could not have preferred these petitions. 6.2 It was further submitted that the petitioners have been given opportunity of personal hearing, however the same was not availed and therefore, the petitioners cannot raise the issue of breach of principles of natural justice in the facts of the case. 6.3 It was submitted that as the refund claims are required to be adjudicated within the time-bound period as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oning authority can very well call for report from the Jurisdictional Service Tax Officers of the service provider. It is also observed that the refund was rejected also 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. This 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. As per my above discussion, I am of the view that the matter needs to be reconsidered by the original authority. Accordingly, I set aside the impugned orders and remand the matter to the adjudicating authority to reprocess the refund claim keeping in mind the above observation and pass a fresh order. Appeals are allowed by way of remand to the adjudicating authority. 7.1 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 29th November, 2022 for the second time quashed and set aside the Order-in-Original and remanded the matter again to the adjudicating authority to decide the matter in light of order dated 30th September, 2020 passed by the Commissioner (Appeals) in earlier round. In the third Order-in-Original the adjudicating authority again passed an ex parte order considering the same grounds as discrepancies which were considered by the CESTAT while sanctioning the first refund claim. 7.3 Thus, from the approach of the respondent authorities, it is apparent that on the same facts and in spite the first refund claim was granted by the respondent authority in view of the order passed by the CESTAT, second refund claim could not have been rejected and it ought to have been granted as the same arises in the same facts. 7.4 It is also apparent that the respondent authority while passing the impugned order dated 07th October, 2022 did not grant any opportunity of hearing to the petitioners and did not consider the orders passed by the CESTAT as well as two orders passed in appeals by the appellate authority. It would be therefore interesting to reproduce reasons recorded in the impugned Order- in- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gative list. Therefore same should be taxed by virtue of Section 66(E)(b) read with section 65 B (22) and section 65(B)(44). (f) Evidence documents regarding payments of the S. Tax from the builder are not provided. (g) No objection certificate from the builder along with the declaration from the builder that they shall not claim the refund of the said amount are not provided. (h) Declaration/Undertaking of erroneous refund is not provided. From the facts available on record and documents submitted by the claimant it appears that the said claimant failed to comply with the provisions of Section 11B of the Central Excise Act, 1944 as made applicable to Service Tax matters vide Section 83 of the Finance Act, 1994 and rules framed there under and as such the refund claimed by the said claimant does not appear proper and admissible admissible. 7.5 The respondent, while considering the above discrepancies, did not even consider the findings of the CESTAT or the findings arrived at by the appellate authority in two Order-in- Appeals referred to hereinabove, and again rejected the second refund claim for the third time on the same grounds. 8. It is trite law that the orders passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
