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Tahnee Heights Co-op. Housing Society Ltd. Versus Union of India,

2015 (10) TMI 365 - BOMBAY HIGH COURT

Claim of interest on Refund - Duty paid under protest - club or association services - Denial on the ground that request for payment of interest is premature - Appeal against the order of CESTAT pending in Supreme Court - Held That:- Revenue having complied with the Tribunal's order and granted refund partially, has withheld the interest claim on a possible realisation that if this is also awarded and paid, the proceedings before the Supreme Court would be rendered infructuous. This cannot be th .....

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KULKARNI, JJ. For The Petitioner : Prakash Shah and Jas Sanghavi For The Respondent : Pradeep S. Jetly JUDGMENT 1. The petitioner is a co-operative housing society registered under the Maharashtra Co-operative Housing Societies Act, 1960. The petitioner has allotted units/flats to their members in a building which is owned by it. The members contributed certain sums and on monthly basis enabling the petitioner to maintain and repair the structures/building. The Commissioner of Service Tax deter .....

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ed in payment of service tax. 3. The petitioner replied and contested this position by pointing out that no service tax was liable to be paid under the category of 'club' or 'association' services as they are not providing any services. On 10.7.2009 the order-in-original was passed by the Assistant Commissioner of Service Tax, Mumbai, who rejected this refund claim aggregating to ₹ 93,00,365/- on the ground that the petitioner is liable to pay service tax under this categor .....

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ed 18.12.2014. Following this success in the Tribunal, the petitioner's claimed the amounts under the refund claims with interest. There is correspondence commencing from 6.1.2015 and copies thereof are annexed. 4. From the record it appears that the petitioner has been paid the principal sum but the claim of interest on the amount which was sought to be refunded has been refused, according to them, not for any other reason but only because of a communication of the department dated 22.6.201 .....

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have been initiated before the Hon'ble Supreme Court. 7. We do not see how and why the petitioner should go on initiating proceedings as the order of the Tribunal is clear. The order passed on 18.12.2014 determines the dispute and about the recovery of the amount of tax itself. Once the Tribunal holds that the tax is not recoverable and sets aside the order-in-original and order-in-appeal, and allows the petitioner's request as contained in the appeal before the CESTAT with consequential .....

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gistered and, thereafter, placed before a bench of Hon'ble Supreme Court of India. 9. After hearing both sides and noting the request of the Revenue, we are mindful of the fact that some compliances and in procedural matters before the Supreme Court of India takes time. However, we do not find any justification and when the impugned order of the CESTAT was passed on 18.12.2014 and the appeal is indeed lodged in the Supreme Court of India, in the Revenue not taking any steps to comply with th .....

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