TaxTMI 
TaxTMI 
2023 (2) TMI 9
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....port of goods and for no other reason whatsoever. 2. The issue to be decided is whether the refund claim filed by the appellant-claimant has been rightly rejected on the ground of absence of express provision in that regard? 3. The facts leading to the filing of the instant appeal are stated in brief as follows. The appellant-claimant had booked a flat in the project namely "Tridhaatu Aroha" and as required by the builder she had paid Rs.24,00,000/-, Rs. 1,08,000/- and Rs. 2,26,800/- as advance for booking of the said flat on 17/09/2016, 20/09/2016 and 19/12/2016 respectively. Since there was no progress in the construction of the building project therefore the appellant got her booking cancelled and the builder i.e. M/s Tridhatu Vishnu....
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....en accounted for by them and therefore a show cause notice dated 30/01/2019 was issued to the appellant-claimant as to why the said amount of Rs.2,26,800/- claimed as refund by her should not be rejected. The Adjudicating Authority vide Order-in-Original dated 27/05/2019 rejected the entire amount of Rs.3,34,800/- to the appellant-claimant on the ground that the appellant has failed to prove that the service tax liability has been discharged by the builder. On appeal filed by the appellant the learned Commissioner vide impugned order dated 17/10/2019 rejected the same on the ground that the refund of credit is only permissible in case of export of goods and for no other reason. 5. Learned Counsel for the appellant submits that both the au....
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....epresentative appearing on behalf of Revenue and perused the case records including the submissions and case laws placed on record by respective sides. As per Rule 6(3) of Service Tax Rules, 1994, the builder has an option to take the credit of excess service tax paid by him, if that builder had refunded the payment or part thereof so received alongwith the service tax payable thereon for the service to be provided by him to the person from whom it was received. Undisputedly, the builder has given a declaration under Rule 6(3) ibid vide letter dated 06/04/2018 to the Deputy Commissioner (refund) stating therein that they have not adjusted the amount of Rs.3,34,800/- paid towards service tax / advance service tax on amounts received from app....
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....Company Ltd. (supra) made it clear that the consumer / buyer who has borne the burden of tax is eligible for refund. In my view the learned Commissioner has misdirected himself by observing that there is no provision to refund such Service Tax paid under the existing law as the same is contrary to the law laid down by the Hon'ble Supreme Court. It is surprising that on identical facts one authority is passing order in favour of claimant whereas in respect of the same builder on identical facts another authority is taking totally contrary view. 7. So far as appellant-claimant herein is concerned certainly she is not liable for payment of any service tax as she has not received any service. Recently this Tribunal in the matter of Credence P....