TMI Blog2019 (1) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... re condonable - In the present appeal, it is not the case of department that appellant has availed credit in excess of the requisite proportion. Admittedly tax stands paid. Resultantly, the procedural lapse is mere technical for no substantial loss to the department. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.ST/52674/2018-ST [SM] - FINAL ORDER NO. 50045/2019 - Dated:- 14-1-2019 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. Krishna Garg, Consultant Present for the Respondent: Ms. Tamana Alam, D.R. ORDER PER: RACHNA GUPTA The appellant is engaged in providing Construction of residential Complex services. They have constructed multi storied residential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant that the whole demand against the appellant in the present matter is made mainly on the refund amount not shown separately by the assessee in their returns. In fact appellant started its project in the year 2009-10. Service tax on builders was imposed w.e.f. 01.07.2010 hence they started to make payment of service tax on advance booking received on or after that date. Due to some financial problem or for some other reason some of the customers cancelled their booking after giving advance amount and requested to refund the advance amount given by them. Emphasis is made on Rule 6 (3) of Service Tax Rules, 1994 which allows credit of service tax paid on services which were actually not provided. Finally submitting that not showing the ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .11.11 250000 Total 2150000 53973 Krishna Developers Refund Details Sl.No. 2012-2013 Date of Receipts Amount Tax Rate of Tax Date of Refund Amount Name of Party 1 Sandesh Agarwal 02.09.11 500000 12552 2.575 03.01.13 500000 2 Samerjeet Singh Bhasin 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for any reason, the assessee may adjust the excess service tax so paid by him (calculated on a pro rata basis) against his service tax liability for the subsequent period, if the assessee has refunded the value of taxable service and the service tax thereon to the person from whom it was received. 4. There is no dispute apparently that few of the customers cancelled their booking after giving advance amount with the request to refund the same. The adjudicating authorities are of the opinion that there is no evidence about the said refund (as mentioned above). Also that the amount of credit to be taken was supposed to be shown separately in return form instead of adjusting the same with gross amount of taxable service. But not only f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption and refund Condition precedent Distinction to be made between a procedural condition of a technical nature and a substantive condition Non-observance of the former condonable while that of the latter not condonable as likely to facilitate commission of fraud and introduce administrative inconveniences 6. In the present appeal, it is not the case of department that appellant has availed credit in excess of the requisite proportion. Admittedly tax stands paid. Resultantly, the procedural lapse is mere technical for no substantial loss to the department. 7. Accordingly, it is held that substantial benefit cannot be denied on account of technical procedural lapses. Order is accordingly set aside. Appeal stands allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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