TaxTMI 
TaxTMI 
2026 (6) TMI 641
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....iled a refund claim on 27.04.2015 claiming refund of Rs.6,47,490/- and interest of Rs.17,401/-. However, show-cause notice was issued proposing rejection of the refund claim. On adjudication, the original authority referring to Section 66D(m) of the Finance Act, 1994 and referring to the rental agreement dated 12.02.2014 observed that the service rendered by the appellant does not come under the negative list. The Commissioner (Appeals) also held that the refund claim was based on wrong interpretation that the service provider was exempted under Section 66D(m) and also rejected on the ground that the building was hired for running hostel and not for residential purpose. Aggrieved by this order, the appellant is in appeal before the Bench. 2. The Learned Counsel appearing for the appellant submits that the Revenue holding that renting of the premises to the Educational Foundation for use as a hostel does not qualify as renting of residential dwelling for use as residence, is erroneous. She submits that Section 66D(m) exempts services by way of renting of residential dwelling for use as residents and the statute does not carve out any exception. She submits that the rental agreeme....
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....ntainable, he submits that the claim is not to be entertained. He further submits that the Hon'ble Apex Court had observed as follows: "there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order." 3.1 He further submits that subsequently, in Priya Blue Industries Ltd. v. Commr. of Customs {2004 (172) E.L.T. 145 (S.C.)}, the Hon'ble Supreme Court refused to change its opinion and reiterated that the assessment order being an appealable order and refund being a consequence of the assessment, in the absence of a challenge to an assessment order a refund claim could not be entertained much less considered on merits. Thus, the issue rested conclusively in the context of the assessment regime under the customs law. Also referring to the Hon'ble Supreme Court in ITC case {2019 (368) ....
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...., whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment of levy has become final in his case, he cannot seek to reopen it nor can he claim refund without reopening such assessment/order on the ground of a decision in another person's case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund. 3.2 He further submits that the reliance placed by the appellant on the decision in the case of M/s. Taghar Vasudeva Ambrish {2026 (104) G.S.T.L. 193 (S.C.)} cannot be of any use since it is contrary to the Hon'ble Apex Court's decision supra, that the appellant must fight his own battle and must succeed or fail in his proceedings, which has to be done to challenge to the assessment. Also, he submits that from para 9 of the Order-in-Original dated 08.07.2015 and para 7 of the Order-in-Appeal dated 28.06.2016, it is evident that apart fr....
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....iliation statement between total value received and value received from M/s. Alvas Education Foundation etc to substantiate the claim for refund, in the absence of which, no corelation could be made to their claim for refund of Rs.6,47,490.00 (Rupees Six lakh forty seven thousand four hundred and ninety only) and hence, it appears that the refund claim is liable for rejection". 5.1 The original authority while adjudicating the above notice held as follows: "I find from the rent agreement dated 12-02-2014 submitted by Sripathi Bhat that M/s. Alvas Education Foundation has taken on rent the Hostel building for the purpose of running a Hostel for its students. Hostel' in the trade parlance will mean an establishment which provides inexpensive food and lodging or accommodation for a specific group of people, such as students, workers, or travellers'. It is clear from condition (16) of the rent agreement that the building is a hostel building consisting of common kitchen and dining area. Therefore, it is clear that M/s. Alvas Education Foundation are not able to utilize the building as single or multiple residences to their students, staff or faculty. M/s. Alvas have....
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....e of Commissioner of Customs, Mumbai Versus Toyo Engineering India Limited: 2006 (201) E.L.T. 513 (S.C.) dated 31-8-2006 observed as follows: "16. Learned counsel for the Revenue tried to raise some of the submissions which were not allowed to be raised by the Tribunal before us, as well. We agree with the Tribunal that the revenue could not be allowed to raise these submissions for the first time in the second appeal before the Tribunal. Neither adjudicating authority nor the appellate authority had denied the facility of the project import to the respondent on any of these grounds. These grounds did not find mention in the show cause notice as well. The Department cannot be travel beyond the show cause notice. Even in the grounds of appeals these points have not been taken." 6.2 Similarly, in the case of Commissioner of C. EX., Bangalore Versus Brindavan Beverages (P) LTD. 2007 (213) E.L.T. 487 (S.C.) dated 15-6-2007, the Hon'ble Supreme Court observed as follows: "10. ............... The show cause notice is the foundation on which the department has to build up its case. If the allegations in the show cause notice are not specific and are on the contrary va....
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....cost of repetition, it is observed that Entry 13 of the Exemption Notification does not mandate that the lessee must use the residential dwelling as its own residence. Giving any other interpretation would mean adding an additional condition to Entry 13. xxxx 61. Giving Entry 13 a narrow interpretation by holding that it is available only when the property so rented is used by service recipient themselves would ultimately lead to legislative intent being defeated as the exemption is extended to cases wherein residential dwelling is rented out and ultimately used as residence, irrespective of the person using it. The legislative intent behind this exemption clause is that a rented property, that is used as residence should not suffer 18% GST or IGST. However, if Entry 13 is given such a narrow interpretation, then, exemption will not be available in cases where a lessee has subleased the property for use as residence. 62. In the present matter, the ultimate use of the property remained unchanged. In other words, it remained as 'use for residence' by students/working women. However, if 18% GST is levied on this transaction between the respondent No. 1 and t....