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2023 (8) TMI 254 - CESTAT BANGALORERefund of service tax paid - invoice/bill issued by KINFRA is produced for the claim of refund under Section 104 of the Finance Act, 2017 or not - the documentary evidence to establish that cenvat credit has not been availed is satisfied or not - appellant paid upfront amount on long term lease with Service Tax to KINFRA, who in turn paid the service tax to the Government - service was exempt by insertion of Section 104 in Chapter V of Finance Act 1994 with retrospective effect. HELD THAT:- The appellants filed refund claims which arose as a consequence of introduction of Section 104 of the Finance Act w.e.f. 31.03.2017. Further Notification No. 41/2016 dated 22.09.2016 has exempted taxable service provided by the State Government Industrial Development Corporation/Undertakings to the industrial units by way of granting long term lease of industrial plots from so much of service tax leviable thereon under 66B of the Finance Act, 1994 as is leviable on the one time upfront amount payable for such lease. Vide Section 104(1) exemption is provided for such services for the period from 01.06.2007 to 21.09.2016 and it has also provided that the refund claim should be filed within 6(six months) from the date on which the Finance Act, 2017 receives the assent of the President. In this case, it is found that the appellant has filed refund claims in time. The reasons why the refund claims have been rejected by the original authority and upheld by the first appellate authority is that the appellants did not produce the documents namely invoices/bill evidencing that they have paid service tax through KINFRA and non availment of Cenvat credit - The invoices produced by the appellants during the pendency of the appeals clearly show that they have paid the service tax to KINFRA, who in turn paid the same to the Government. Further, they have submitted a certificate from a Chartered Accountant to the effect that Cenvat credit has not been availed and that it has not been passed on to others. The appellants have now produced sufficient documents to prove that they have paid the service tax and have not availed or passed on the Cenvat credit, there are no justification in the rejection of refund claim - appeal allowed.
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