TaxTMI 
TaxTMI 
2021 (11) TMI 837
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.... as infructuous. 2.2 Appellant holds service tax registration for providing taxable services (under the category of Renting of Immovable Property Services). 2.3 Appellant preferred a refund claim for an amount of Rs. 4,43,827/- (Rupees Four Lakh Forty Three Thousand Eight Hundred and twenty Seven only) in respect of the service tax paid by them during 2016-17 in respect of the services erroneously classified by them under the category of Renting of Immovable Property Services, whereas the services provided by them actually were "Service by Hostel for residential/ lodging purpose, having declared tariff of a unit of accommodation less than one thousand rupees day or equivalent" exempted as per Notification No 25/2012-ST dated 20.06.2012. 2.4 Assistant Commissioner sought a verification report on the refund claim from the jurisdictional range Superintendent and thereafter proceeded to reject the refund claim filed by the Appellant without issuing any notice but after granting them hearing. 2.5 Aggrieved by the order of the Assistant Commissioner, appellant preferred an appeal before the Commissioner (Appeals) which was dismissed by the Commissioner (Appeals). 2.6 Hence....
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....to be admissible, then also same cannot be made without Assistant Commissioner recording his satisfaction to effect that burden of the tax paid has not been passed on by the appellants to the service recipients. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 The Sl No 18 of the notification No 25/2012-ST dated 20.06.2012 reads as follows: "18. Services by a hotel, inn, guest house, club or campsite, by whatever name called, for residential or lodging purposes, having declare tariff of a unit of accommodation below one thousand rupees per day or equivalent." Impugned order for denial of the benefit of exemption claimed in terms of this entry of notification states as follows: "7.3 Hence, I find that we Appellant, seeks to classify themselves in the category of Hotel, Inn, Guest House, Club etc. They have also emphasized that the words "By whatever name called" would extend the meaning of Hotel, Inn, Guest House to the Hostel being run for students of a Medical college. I do not agree to the said argument of the Appellant. The Appellant is bound by the agreement and is required to ....
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.... longer-term accommodation. In India, Pakistan and South Africa, hostel also refers to boarding schools or student dormitories in resident colleges and universities. In other parts of the world, the word hostel mainly refers to properties offering shared accommodation to travelers or backpackers. iv. Cambridge Dictionary Inn: noun [C] IN UK: a pub where you can stay for the night, usually in the countryside In Us a small hotel, usually in the countryside Inn used in the names of some hotels and restaurants: example "the Holiday Inn" v. Dictionary.com Inn : noun i) a commercial establishment that provides lodging, food, etc., for the public, especially travelers; small hotel. ii) a tavern. iii) British: any of several buildings in London formerly used as place s of residence for students, especially law students. Compare Inns of Court. iv) a legal society occupying such a building. v) Oxford Web Dictionary: Hotel: NOUN An establishment providing accommodation, meals, and other services for travelers and tourists. vi) Merriam Webster dictionary HOTEL: an estab....
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....ok place before us on the question whether sub-section (3) makes Section 11B exhaustive of all kinds of refund claims including those which are refundable as a consequence of appellate/revisional order and/or as a consequence of orders made by the High Court/Supreme Court. Sri Nariman pointed out that in Rule 11 (as it was in force during the period August 6, 1977 to November 17, 1980), sub-rule (3) expressly provided that "where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf" and that sub-section (3) of Section 11B, before its amendment in 1991, was also in identical terms. But, Sri Nariman says, subsection (3) of Section 11B has now been dropped; there is no corresponding provision in Section 11B as it now stands, which means, says the counsel, that even a refund claim arising as a result of an appellate order or an order of a court has also got to be made under and in accordance with sub-sections (1) and (2) of Section 11B and will be disposed of in terms of sub-section (2) of the said section, as amended ....
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....t has no doubt given us a pause; it is certainly a substantial plea, but there are adequate answers to it. Firstly, the rule means that only the person who has actually suffered loss or prejudice would fight the levy and apply for refund in case of success. Secondly, in a competitive market economy, as the one we have embarked upon since 1991-92, the manufacturer's self interest lies in producing more and selling it at competitive prices - the urge to grow. A favourable decision does not merely mean refund; it has a beneficial effect for the subsequent period as well. It is incorrect to suggest that the disputes regarding classification, valuation and claims for exemptions are fought only for refund; it is for more substantial reasons, though the prospect of refund is certainly an added attraction. It may, therefore, be not entirely right to say that the prospect of not getting the refund would dissuade the manufacturers from agitating the questions of exigibility, classification, approval of price lists or the benefit of exemption notifications. The disincentive, if any, would not be significant. In this context, it would be relevant to point out that the position was no ....
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....the duty which was originally paid by the Assessee was passed on. The refund claimed by the Assessee is for an amount which is part of the excise duty paid earlier and passed on. The Assessee who did not bear the burden of the duty, though entitled to claim deduction, is not entitled for a refund as he would be unjustly enriched. It will be useful to refer to the relevant para of Mafatlal Industries v. Union of India (supra) in this connection. "108. (iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above req....
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....dings of the High Court in this regard. 19. The sine qua non for a claim for refund as contemplated in Section 11B of the Act is that the claimant has to establish that the amount of duty of excise in relation to which such refund is claimed was paid by him and that the incidence of such duty has not been passed on by him to any other person. Section 11B(2) provides that, in case it is found that a part of duty of excise paid is refundable, the amount shall be credited to the fund. Section 2(ee) defines Fund to mean the Consumer Welfare Fund established under Section 12C. There is a proviso to Section 11B(2) which postulates that the amount of excise duty which is refundable may be paid to the applicant instead of being credited to the fund, if such amount is relatable to the duty of excise paid by the manufacturer and he had not passed on the incidence of such duty to any other person. Clause (e) to proviso of Section 11B(2) also enables the buyer to receive the refund if he had borne the duty of excise, provided he did not pass on the incidence of such duty to any other person. There is a third category of a class of applicants who may be specified by the Central Governm....