TaxTMI 
TaxTMI 
2013 (12) TMI 46
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....service tax paid on input services which have been utilized for providing output services. Appellant was issued show-cause notices by the lower authorities to show-cause as to why the refund claims should not be rejected. The appellants contested the show-cause notices before the adjudicating authority. The adjudicating authority after considering the submissions made by the appellant, partly allowed the refund claims. Against the refund claims rejected by the adjudicating authority, the appellants were in appeal before the first appellate authority and having failed, they are also before the Tribunal in separate proceedings. During the pendency of an appeal filed against the rejection claim by the adjudicating authority before the first appellate authority, Commissioner of Service Tax issued show-cause notices to the appellants for reviewing the order of the adjudicating authority to the extent adjudicating authority has allowed the refund claims. The said show-cause notices were adjudicated by the Commissioner a revisionary authority and has rejected the refund claims which were allowed by the adjudicating authority. Against such an order, the appellants are before this Tribunal.....
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....is name, the same may be bifurcated into his name as well as his wife name. This was done so by the appellant. He would submit that both Mr. Mohammad Oomer Sait and his wife are registered with the service tax authorities and have issued invoices indicating payment of service tax on the amount of the rent received by them. It is his submission that Revenue authorities have not put on records that invoices raised by Mrs. Tahseen Oomer Sait is incorrect or that she has not paid the service tax to the department. It is his submission that on merits itself, he has got a good case but at the same time, he would also raise a legal point as to whether the Commissioner as a revisionary authority can review an order which was appealed against to the first appellate authority. It is his submission that the first appellate authority has passed an order before the revisionary authority, could pass impugned orders. It is his submission that the decision of the Hon'ble High Court of Punjab and Haryana in the case of Commissioner of Central Excise vs. Shiva Builders: 2011 (22) S.T.R. 513 (P&H) is directly on the point. It is also his submission that on technical ground as well as on the merits, t....
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....r.) has held that non-payment of tax and interest would be a part of the tax itself and if not collected, would be prejudicial to the interest of the Revenue. It is her submission that this ratio is squarely applicable to this case as the appellant's claim for refund which he is not entitled if allowed, is prejudicial to the cause of the Revenue. 6. I have considered the submissions made at length by both sides and perused the records. The issue to be decided in these cases is whether appellant is eligible for the refund of the service tax paid by the service provider and utilized by him for rendering output services. 6.1 The undisputed facts are that the appellant is registered with the authorities as service provider under various categories and holds a centralized registration certificate. It is also undisputed that appellant is operating from rental premises for which he had entered into an agreement with the owner. It is also undisputed that the entire agreement mandates that the appellant should pay the maintenance charges and other charges which come along with the renting of the premises. 6.2 On this factual matrix, it is to be seen that whether the appellant is el....
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....s per the provisions of the Finance Act, 1994 and the Rules made thereunder, such CENVAT credit cannot be denied. Secondly, though the appellant has entered into an agreement with Mr. Mohammed Oomer Sait for renting of the entire premises, subsequently on written request of the owner, due to presumably his own tax problem, had directed the appellant to issue two different cheques. The issuance of two different rent cheques, one in the name of Mr. Mohammed Oomer Sait and Mrs. Tahseen Oomer Sait would not mean that the appellant is not paying any rent to the owner of the premises. In my view, point raised by the Revenue in denying the refund is hyper technical. This view is unsustainable and liable to be set aside, more so when it is undisputed that Mrs. Tahseen Oomer Sait has paid the service tax and indicated on the invoice. 6.6 As regards the legal points raised by the learned counsel regarding the power of revisionary authority to review the order which was in appeal before the first appellate authority, I find that the decision of the Hon'ble High Court of Punjab and Haryana in the case of Shiva Builders (supra) were considering the very same issue, wherein their lordships ha....