TMI Blog2024 (3) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... their appeal without proper consideration - violation of principles of natural justice - HELD THAT:- On going through the Agreement of Lease between the Appellant and Rajarhat IT Park Ltd, it is found to be a pure Lease Agreement. Nowhere, is it specified that it is a part of any Sale Agreement or Sale Deed. On going through the receipts issued by Rajarhat, it is seen that they have simply mentioned the amount collected by them without mention of any Service Tax component or Service Tax registration taken by the service provider. The Appellant has been charged Service Tax by the service provider under the heading of renting of immovable property for the Lease Agreement entered with them. However, the Appellant has taken a different stand s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating Authority as well as by the Commissioner (Appeals), since the Appellant is not in a position to prove anything contrary even at this stage - appeal dismissed. - HON BLE MR. R. MURALIDHAR , MEMBER ( JUDICIAL ) Mr. Sushil Kumar Goyel, CA for the Appellant Mr. S. S. Chattopadhyay, Authorized Representative for the Respondent ORDER PER R. MURALIDHAR : Since the issue is common, all the four Appeals have been taken up together with the consent of both the parties. The Appellants have entered into an agreement to take on lease with Rajarhat IT Park Ltd. The lessors have leased out the property for 99 years and for the consideration received on this count, they have charged the Service Tax. The Appellants have taken the view that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the commercial property purchased/Leased by the Appellant. Noting that these details were not properly provided by the Appellant, he has dismissed their Appeal. Being aggrieved, the Appellant is before the Tribunal. 4. The learned Chartered Accountant appearing on behalf of the Appellants submits that this is not a case of leasing of immovable property, but it is a case of providing construction service towards the commercial property sold to the appellants. During the last Hearing, he was directed to submit a copy of the Lease Agreement. Today he has produced the same. He draws my attention to Paragraph 6 of the OIO and submits that the Adjudicating Authority has misinterpreted the whole issue and has rejected the refund claim on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arged have been provided in these receipts. Therefore, the Learned AR submits that the Adjudicating Authority has rejected the refund claim on all these grounds put together and not only on account of Section 11B provisions alone. He also takes me through the detailed finding of the Commissioner (Appeals). At Paragraph 5.2 of the OIA, the Commissioner (Appeals) has clearly held that even at the time of hearing before the Commissioner (Appeals), the Appellant was not in a position to prove that the service provider has deposited all the Service Tax collected from the Appellant. Secondly, he has not been able to prove that the service provider has not taken the Cenvat Credit for the inputs received by them. The Appellant is also not in a posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Sl. No. 12 of Notification 26/2012-ST dated 20/6/2012. The Appellant being the service recipient, I take the view that the Appellant is not allowed to question the classification adopted by the service provider. The service provider in this case has treated the service as renting of immovable property and has collected the Service Tax @ 12.36% (as per the Appellant himself) and has also filed the ST-3 Returns accordingly with their jurisdictional office. The service provider has, at no point of time claimed that this has been done by him by way of mistake and actually they are providing only the service of construction of commercial property . In such a case, the Appellant as a recipient of service is precluded from changing the classi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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