TaxTMI 
TaxTMI 
2024 (3) TMI 1508
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....ad discharged the applicable Service Tax in respect of such booking amount so collected. Subsequently, due to various reasons, 29 allottees decided to cancel their respective bookings with the Appellant. Accordingly, the Appellant refunded the advance amount/booking amount so paid by such allottees alongwith the service tax amount collected and deposited by the Appellant with the Revenue. Details of which are mentioned below:- Refund filed on 06.03.2018 Date of cancellation Name of the customer Name of the project Unit No. Original Refund 01-11-2017 Bhupendra S. Danu Levels B - 3403 5,01,192 10-11-2017 Krunal Mahendra Gandhi Levels C-903 1,12,500 21-12-2017 Arpit Khaitan Levels C - 2601 22,500 16-10-2017 Nirmala Rose James Chettiar Rainforest D - 1203 9,000 16-10-2017 Jahida Abdulsamad Pathan Rainforest C - 1303 4,57,902 06-12-2017 Elsy Francis Nadar Zenworld B - 701 9,000 06-12-2017 Elsy Francis Nadar Zenworld B - 702 9,000 02-02-2018 Prathamesh Raorane Zenworld E - 402 69,734 26-....
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....alf of the Appellant has made the following submissions; (a) That the impugned order has erred in recording in para 10.3 that, the case laws and circulars relied upon by the Appellant pertains to the issue originating prior to the introduction of the negative list, and therefore, the same are not applicable to this case. (b) That interpretation of the Department that services were already provided at material time and at the time of cancellation of flat, it cannot be considered as "services were not provided" or "partially not provided" is absolutely baseless. If this was the intention of the lawmaker, then option of adjustment of Rule 6(3) under earlier regime would not have been provided in the legislature. (c) That Section 67 of the Finance Act which governs the valuation of taxable services for charging/levy of tax emphasises that only the gross amount 'charged' by the service provider shall be liable to service tax. Therefore, where the amount has been refunded back to the customers, then it can be construed that no amount is charged by the service provider and no tax is leviable on the same. The statutory provision itself does not accommodat....
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....the CGST Act. In view of the specific provisions of sub-section (3) of section 142 of the CGST Act, every claim for refund after 01.07.2017 has to be disposed of in accordance with the provisions of the existing law i.e. Chapter V of the Finance Act and the Central Excise Act. This would mean that the appellate provisions would continue to remain the same. This position is also explicit from the provisions of subsection (6)(b) of section 142 of the CGST Act, wherein it has been provided that every proceeding of appeal, review or reference relating to recovery of CENVAT credit initiated whether before, on or after the appointed day under the existing law shall be disposed of in accordance with the provisions of the existing law. 45. Section 174(2)(f) of the CGST Act also provides that the repeal of the Central Excise Act under section 174(1) and amendment of the Finance Act under section 173 shall not affect any proceedings including that relating to an appeal instituted before, on or after the appointed day under the said amended Act or repealed Acts and such proceedings shall be continued under the said amended Act or the repealed Acts as if the CGST Act had not come into....
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....o conditions, which are sacrosanct to any refund application, are that (i) such refund application ought to be filed within the prescribed period of limitation and (ii) the incidence of duty should not have been passed to any other person by the applicant. 11. I find that the aspect of limitation in the facts and circumstances of the present matters, has already been decided by this Tribunal in the following cases, whereby it was held that the time limit prescribed under Section 11B of the Central Excise Act, 1944 cannot be invoked to reject a refund claim filed under Section 142(5) of the CGST Act, 2017: a) Wave One Private Limited v. Commissioner [2023 (11) TMI 1078 - CESTAT New Delhi] b) Jai Mateshwaari Steels Pvt. Ltd. v. Commissioner, CGST Dehradun [2022 (3) TMI 49 - CESTAT New Delhi] 12. I find that the Appellant had collected service tax from the allottees and had duly deposited such service tax with the Revenue. Subsequently, on cancellation of the bookings/allotments, the allottees were entitled to the entire invoice amount paid by them, including the service tax amount and the Appellant was eligible to avail Cenvat credit in respect of the service ....
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....he buyer cancelled the said booking on which service tax has been paid and the Appellant returned the booking amount along with service tax collected, then where is the question of providing any service by the Appellant to that customer. The cancellation of booking coupled with the fact of refunding the booking amount along with service tax paid would mean as if no booking was made and if that is so, then there was no service at all. If there is no service then question of paying any tax on it does not arise and the Department can't keep it with them. No law authorises the Department to keep it as tax. The net effect is that now the amount, which earlier has been deposited as tax, is merely a deposit with the Department and the Department has to return it to the concerned person i.e. the assessee. In the fact of this case it can be safely concluded that no service has been provided by the Appellant as the service contract got terminated and the consideration for service has been returned. 15. As per Rule 66E(b) (sic) of Service Tax Rules, 1994 in construction service, service tax is required to be paid on amount received from buyers towards booking of flat before the issuance of....