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2018 (9) TMI 388 - AT - Service TaxRefund Claim - whether the appellant have locus standi to file refund claim or not? - service tax deducted and deposited by the Housing Board on behalf of the appellant (service provider) - Held that:- This issue is already settled by the judgment of the Hon’ble Supreme Court in the case of Oswal Chemicals & Fertilizers Ltd. [2015 (4) TMI 352 - SUPREME COURT], where it was held that the appellant who had paid the excise duty to the manufacturer, viz., M/s. Indian Oil Corporation Ltd. and BPCL in the instant case, had the necessary locus standi to file the application claiming the refund of the duty - It was further held in the case that Explanation (B) defines “relevant date”. Though this date has reference to the calculation of limitation period for the purposes of seeking refund of the duty under the aforesaid provision. However, clause (e) while stating the “relevant date” clarifies that in case of a person, other than the manufacturer, the date of purchase of goods by other person would be the relevant date. This itself indicates that the person can be other than the manufacturer and Explanation (B) caters to such other person. Thus, the appellant have locus standi to file refund claim in this case. Disclaimer certificate - Held that:- The appellant have placed on record disclaimer certificate dt.30.1.2018 from the Housing Board Haryana in respect of their claim. The order of the Commissioner (Appeals) in the present case is dated 31.1.2018 - Admittedly, the disclaimer certificate was not produced before the Commissioner (Appeals) when the impugned order was passed. It would therefore be appropriate to set aside the impugned order and remand the matter to the first appellate authority so that he can examine the issue afresh by taking into account the disclaimer certificate dt.30.1.2018. The matter is remanded back to the Commissioner (Appeals) with the direction to consider the disclaimer certificate dt.30.1.2018 issued in favor of the appellant issued by the Housing Board Haryana and to pass a fresh order in accordance with law - appeal allowed by way of remand.
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