2016 (12) TMI 1525 - AT - Service Tax

Tribunal upholds denial of refund claim for service tax on property rental due to double payment issue

The Tribunal dismissed the appeal challenging the rejection of a refund claim by the Commissioner (Appeals) related to service tax on renting immovable ... Rejection of refund claim - denial on the ground that the amount of service tax sought as refund has not been paid by the appellant but has been paid by M/s Bata India Ltd. - time bar - M/s Bata India Ltd., Chennai are one of the tenants of appellants - Held that: - The appellant has filed refund claim of ₹ 9,47,140/- on the ground that the tenant M/s Bata India Ltd., has also paid the service tax on the rent paid to appellant on which the appellant has also discharged the liability. The appellant's contention is that there is excess amount of payment of service tax to the Government and therefore apellant is eligible for refund. This contention cannot be accepted for the simple reason that the appellant who is liable to pay service tax in Guntur Commissionerate has paid the service tax and the liability is discharged. If M/s Bata India Ltd., has also paid the very same amount erroneously in Chennai Commissionerate it is for M/s Bata India Ltd., to apply for refund. So also if M/s Bata India Ltd., did not pay the service tax to the appellant, it is for the appellant to proceed against M/s Bata India Ltd., to recover the said amount. This is wholly an internal affair between the appellant and M/s Bata India Ltd. - rejection justified. Time bar - Held that: - The date of payment of service tax by appellant is 20.04.2012. The refund claim is 14.06.2013 which was received in the office of department on 17.06.2013. Therefore the refund claim is beyond the period of one year as prescribed under section 11B of Central Excise Act read with Section 83 of the Finance Act - rejection justified. Rejection of refund claim upheld - appeal dismissed - decided against assessee. Issues:1. Appeal against rejection of refund claim by Commissioner (Appeals).2. Dispute over payment of service tax by tenant directly to Government instead of the appellant.3. Double payment of service tax leading to refund claim.4. Jurisdictional issue of service tax payment.5. Refund claim rejection based on non-payment by appellant and limitation period.Analysis:1. The appeal was filed challenging the rejection of the refund claim by the Commissioner (Appeals), which was upheld by the original authority. The appellant, engaged in renting immovable property services, sought a refund of service tax amounting to Rs. 9,47,140, which was rejected on the grounds of non-payment by the appellant and being time-barred.2. The dispute arose as the tenant, M/s Bata India Ltd., paid the service tax directly to the Government instead of the appellant, leading to confusion regarding the liability. The appellant contended that M/s Bata India Ltd. should have paid the service tax to them along with the rent, as both parties ended up paying the tax on the same amount. However, the department argued that the appellant had already discharged their service tax liability, and any excess payment by the tenant should be addressed by them directly.3. The appellant claimed a refund due to the double payment of service tax on the same rental amount. The appellant's argument was based on the premise that they had paid the service tax from their own pocket, even though the tenant had also paid the tax directly to the Government. This situation led the appellant to believe they were entitled to a refund of the excess tax paid.4. The jurisdictional issue arose concerning the payment of service tax by the tenant in a different Commissionerate from where the appellant had paid the tax. The department argued that the appellant had correctly paid the service tax in their jurisdiction and that any erroneous payment by the tenant should be addressed separately by them.5. The rejection of the refund claim was primarily based on the non-payment of service tax by the appellant and the claim being time-barred. The Tribunal found no merit in the appeal, stating that the appellant had already discharged their service tax liability, and any discrepancy in payment should be resolved between the parties directly. Additionally, the refund claim was deemed beyond the prescribed period of one year, as per relevant statutory provisions.In conclusion, the Tribunal dismissed the appeal, upholding the decision of the authorities below, as the refund claim was found to lack merit on both grounds of non-payment by the appellant and being time-barred under the applicable legislation.