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TMI Blog2024 (3) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... tered into an agreement to take on lease with Rajarhat IT Park Ltd. The lessors have leased out the property for 99 years and for the consideration received on this count, they have charged the Service Tax. The Appellants have taken the view that the service provided by the service provider is not that of renting of immovable property, but it is that of construction services. 2. As per the Appellant, the service provider would be eligible to get the benefit of exemption Notification No. 26/2012, dated 20th June 2012, wherein it is provided that for the construction of complex, 70% abatement is granted. As per the appellant, since the Service Tax was paid by them to the service provider on the entire 100% and not on the 30%, they are eligib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was directed to submit a copy of the Lease Agreement. Today he has produced the same. He draws my attention to Paragraph 6 of the OIO and submits that the Adjudicating Authority has misinterpreted the whole issue and has rejected the refund claim on the ground that the Appellant was neither the service provider nor recipient duly registered with the Central Excise Department. He submits that the Commissioner (Appeals) has not appreciated the factual details and has dismissed their appeal without proper consideration. Therefore, he prays that the present Appeals may be allowed with consequential relief. 5. The learned AR draws my attention to the relevant paragraphs in the OIO. He points out to Para 1 of the OIO wherein the Adjudicating Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the service provider has deposited all the Service Tax collected from the Appellant. Secondly, he has not been able to prove that the service provider has not taken the Cenvat Credit for the inputs received by them. The Appellant is also not in a position to prove that the cost of land has been included in the total consideration received by Rajarhat. Finally, he has held that unless these three points are proved, the Appellant cannot claim that the service provider should have paid the Service Tax only on the balance 30% of the consideration so as to claim the present refund and after this he has dismissed their Appeal. The Learned AR supports the dismissal of Appeal by the Commissioner (Appeals) and prays that the present Appeals ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as, 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. 10. However, I see that this issue was not the part of Show Cause Notice issued by the Department. The Department has given enough chance to the Appellant to prove that the service provider has not availed the Cenvat Credit and has paid the Service Tax received from the Appellant and also to show that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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