2024 (7) TMI 108

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....ate Ahmedabad. The appellant vide letter dated 16.05.2012 informed the department that they have paid 100% service Tax on the rent. However, the service recipient i.e. tenant of the appellant's property also paid 50% of the Service Tax liability as per the Hon'ble Supreme Court interim order in the case of RAI (Retailer Association of India) thus there is excess payment of Service Tax for which the appellant filed refund claim. Since there was delay in processing by the department, the appellant then requested the department for adjustment of excess paid Service Tax against the subsequent liability of Service Tax instead of claiming the refund, the refund claim was returned by department on 29.06.2012, citing reason that since the 50% Servi....

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....he adjustment consequently dropped the demand therefore, the impugned order is not sustainable. He further submits that neither in the show cause notice nor in the adjudication order, there was any issue of wrong availment of CENVAT Credit whereas the appellant have proposed the adjustment of excess paid Service Tax in the future tax liability therefore, the case is not of CENVAT Credit. He submits that since in the revenue's appeal ground is not arising from the Order-In-Original the appeal of revenue was not maintainable before the Commissioner appeal. He placed reliance on this Tribunal decision in the case of Commissioner of Customs, Central Excise and Service Tax vs. Ms. EWDPL - 2020(10) TMI 291- CESTAT New Delhi. 3. Shri Ajay Kumar....