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2024 (3) TMI 403 - CESTAT KOLKATARefund of the Service Tax paid on the balance 70% portion - agreement to take on lease with Rajarhat IT Park Ltd. - renting of immovable property or construction services - availment of 70% abatement on construction of complex service - appellant submits that Commissioner (Appeals) has not appreciated the factual details and has dismissed 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 stating that the service provided by the service provider is that of construction of commercial complex and accordingly in that case the, the service provider should have been granted the abatement of 70% in terms of Sl. No. 12 of Notification 26/2012-ST dated 20/6/2012. The Appellant being the service recipient, 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 classification adopted by the service provider to claim the present refund. As a matter of fact, the refund cannot be claimed by him and the Appeal basically fails on this count itself. Both the lower authorities have clearly held that no evidence in a proper form has been provided by the Appellant to satisfy these queries and the Adjudicating Authority has rejected their refund claim on this ground and even the lower Appellate Authority has dismissed their Appeal only on this ground. There are no reason to interfere with the detailed findings given by the Adjudicating 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.
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