TMI Blog2018 (1) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... Member (Judicial) Appellant himself appeared in person Shri N. Satwani, A.R. for the Respondent ORDER Per : Ashok Jindal The appellant is in appeal against the impugned order wherein the refund claim has been rejected on the ground that appellant has not filed the prescribed documents in terms of Section 11B of the Act. 2. The brief facts of the case are that the appellant purchased a flat from M/s. Dev Procon Limited, a builder and paid service tax to the builder in terms of the agreement. The appellant on realising that the Hon'ble Delhi High Court, in the case of Suresh Kumar Bansal Anuj Goyal Ors Vs. UOI Ors. - 2016 (6) TMI 192 (Del.) held that appellant was not required to pay service tax, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... might have utilised by the builder and therefore, they are not entitled for the refund claim. Moreover, it is evident from the documents that appellant has suffered payment of service tax and the builder as an agent of the Revenue has collected the service tax from the appellant therefore, Revenue cannot wash their hands away merely by saying that they have not provided the details of payment of service tax, as it is beyond the control of the appellant to produce the documents of payment of service tax by the builder. Therefore, it is prayed that refund claim is to be entertained. He further submitted that it is fact on record that service tax was payable by the appellant therefore, the provisions of Section 11B of the Act is not applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable therefore, the adjournment sought for is rejected. 6. I have gone through the show cause notice as well as impugned order and found that nowhere the issue of taxability has been raised. Therefore, the issue of taxability is not before me. The only issue before me is that whether the service tax paid by the appellant is refundable or not which was not payable by the appellant. The refund claim has been rejected on the ground that appellant has not provided documents as prescribed under Section 11B of the Act. I have gone through the impugned order. In the impugned order the ld. Commissioner (Appeals) has held that as the provisions of Section 11B of the Act is not applicable therefore, the refund claim cannot be rejected on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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