TMI Blog2023 (8) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... ate purchaser of the apartments from the builder. Though the detail Final Order in JOSH P JOHN AND OTHERS [ 2014 (9) TMI 597 - CESTAT BANGALORE ] issued by this Tribunal in similar matter was not available before the Adjudication Authority at the time of issue of impugned Order-In-Original, appeal was considered by the learned Commissioner (Appeals) on 29.09.2015 and said order was available with Commissioner (Appeals). Thus Commissioner (Appeals) ought to have considered the guidelines issued by this Tribunal when considering the appeal filed by the appellant. Moreover one of the finding given by the Adjudication/Appellate Authority is that the refund application is premature on the ground that appellant is not barred by any law for time b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly applicable to builders who undertake residential complex having more than 12 residential units. Thereafter vide Board Circular dated 29.01.2009 it was clarified that the service liability will arise only on completion of construction in such case. If the builder carried out the construction and if the ownership of the property is transferred only after completion of the construction activity, such activity would not be subject to service tax because the same will fall under the exclusion provided under the definition of residential complex. Thus on clarification on the above aspect, appellant submitted refund application on 08.06.2009 with documents in support of its claim. The respondent vide letter dated 26.08.2009 raised a query regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (Appeals) also held that the appellant is not barred by any law for time being in force from selling the apartment. As such, appellant is not eligible for refund applied for. Aggrieved by the said order, the present appeal is filed. 2. The appeal was filed in the year 2016 against the payment made in the year 2008. When the matter came up for hearing, the learned counsel appearing on behalf of the appellant submitted that once Adjudication/Appellate Authority accepted the evidence produced by the appellant as sufficient to consider appellant as ultimate purchaser of the apartment from the builder and when confirmed payment of service tax, the rejection is only on vague and flimsy ground. The learned counsel also draws my attention to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s registration number is available and details of service tax paid and the certificate by the developer that he has paid the service tax and statement showing the value of service tax are provided is sufficient to allow refund. The learned counsel also draws my attention to the Final Order No.20297-20306/2017 dated 13.02.2017 issued by this Tribunal allowing refund on similar ground. 3. Learned D.R. retreated the finding given by the Adjudication and Commissioner (Appeals) and submitted that in the absence of documents as mandated under the provisions of law, refund cannot be allowed. 4. I have gone through the submissions made in the grounds of appeal, the submissions made by the learned counsel for the appellant and learned D.R. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason, appellant is not eligible for refund filed. Such finding is nothing but rejecting an eligible claim only on flimsy and vague ground. If the Adjudication Authority/Appellate Authority have reasons to believe that tax payers like appellant is not barred by disposing the property by law, service tax collected by them can be obtained, such finding is illegal and unsustainable. Further, I find that this Tribunal in the matter of Josh P John (Supra) has categorically held that claim may not be rejected on the ground that there is no Bill/Invoice. In the present case the Adjudication Authority itself observed that the service tax collected from the appellant was remitted and the builder has filed ST3 Returns also periodically. Thus I find ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
