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2013 (12) TMI 46 - AT - Service TaxRefund of unutilized CENVAT credit - Rule 5 of CENVAT Credit Rules read with Notification No.5/2006-CE (NT) dated 14.3.2006 - Rejection of refund claim - whether appellant is eligible for the refund of the service tax paid by the service provider and utilized by him for rendering output services - Held that:- car parking area and other maintenance charges levied by the apartment is in respect of the space rented by the appellant for rendering his output services. If there is service tax liability which has been discharged by the service tax provider and collected from the appellant, and if the premises are used by the appellant for rendering output services - appellant being registered with the authorities under STP, the appellants were admittedly rendering their output services from the premises which have been rented to them i.e., ground floor, first floor and second floor. Non-inclusion of the ground floor in the centralized registration certificate may be at the most curable defect which was subsequently cured. Be that as it may, it is not disputed that rent paid for such ground floor was also taxed under the category of renting-out of immovable property by the owner. It is seen from the records that the appellant has paid such service tax to the owner and hence in my view is eligible to avail the CENVT credit of the service tax paid on the rent for the ground floor. When the appellant pays service tax to service provider and has got documentary evidence which is as per the provisions of the Finance Act, 1994 and the Rules made thereunder, such CENVAT credit cannot be denied. Secondly, though the appellant has entered into an agreement with Mr. Mohammed Oomer Sait for renting of the entire premises, subsequently on written request of the owner, due to presumably his own tax problem, had directed the appellant to issue two different cheques. The issuance of two different rent cheques, one in the name of Mr. Mohammed Oomer Sait and Mrs. Tahseen Oomer Sait would not mean that the appellant is not paying any rent to the owner of the premises. In my view, point raised by the Revenue in denying the refund is hyper technical. This view is unsustainable and liable to be set aside, more so when it is undisputed that Mrs. Tahseen Oomer Sait has paid the service tax and indicated on the invoice - Decided in favour of assessee.
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