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2020 (12) TMI 700 - AT - Service TaxRefund of Service Tax paid under protest - contribution received from members of a co-operative housing society - Rejection of refund claim on the ground that appeal is pending in the Hon'ble Supreme Court against the cited judgment gives an impression that orders of the Tribunal are to be disregarded after filing of the appeal - Principles of natural justice - SCN not issued to appellant before rejection order - HELD THAT:- Rejection of refund claim by him on the ground that appeal is pending in the Hon'ble Supreme Court against the cited judgment gives an impression that orders of the Tribunal are to be disregarded after filing of the appeal . It appears that he was empowered to violate the principles set by the Tribunal, once the same had been challenged in an appellate forum despite the settled principle of law that such an order has to be respected unless and until the same is set aside - learned Commissioner (Appeals) had gone on a different ground basing on the Circular No. 175/01/2014-ST and Notification No. 25/2012-ST [Sr. No. 28 (c)] that has clearly demonstrated that such Residential Welfare Association (RWA) must be a non-profit entity and collecting a contribution within monetary celling of ₹ 5000/- prescribed in the said notification though without expressing in clear language that in fulfilling such conditions only, doctrine of mutuality would be respected. As found from the case record, appellant was not even issued with a show-cause notice before rejection of such refund claim, for which appellant also raised the issue of violation of principles of natural justice as a ground for setting aside the Order-in-Original before Commissioner (Appeals). Compliance of such a requirement would have enabled the appellant to establish per head contribution of members to RWA and if such constitution is non-profit in nature. This is a fit case that requires to be re-adjudicated by the Commissioner (Appeals) who is equally empowered under Section 35A(3) of the Central Excise Act, 1944, applicable to Service Tax matters too, to make an inquiry himself and arrive at a finding - appeal is allowed by way of remand to the Commissioner (Appeals).
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