TMI Blog2024 (3) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... CISE CGST-JAIPUR I [ 2023 (2) TMI 479 - CESTAT NEW DELHI] , wherein, there being no dispute with regard to booking, cancellation and the refunds made by the appellant/builder to the buyer including the amount of service tax, in such circumstances, it was held that the appellant/builder is entitled to credit under Rule 6(3) of ST Rules read with Sec 142(3) of CGST Act, the assessee is entitled to refund due to change of regime to GST. The impugned OIA is erroneous and against the provisions of Rule 6(3) of Service Tax Rules read with Sec 142(5) of CGST Act. Accordingly, the appeal is allowed and the impugned order is set aside. The Adjudicating Authority is directed to grant the refund within a period of 45 days from the date of receipt of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjusted/taken as credit (after the inception of GST) as available under Rule 6(3) of ST Rules. The only remedy available with the appellant is to claim the refund of taxes paid on cancelled villa. Accordingly, appellant had filed a refund claim of Rs.16,86,130/- on 13.08.2019. 6. But the range Superintendent who is supposed to verify the application and forward to the division officer (AC/DC) has not given acknowledgement stating that he is fully occupied with the existing work, application enclosed documents shall be verified and asked to re-visit the department on 19.08.2019 with a promise that the application will be acknowledged accepted with a date of 13.08.2019. Later, the appellant visited the department on 19.08.2019, however, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund appeared to be hit by time bar. 8. The SCN was adjudicated on contest and the refund claim was rejected vide OIO dt.06.02.2020. The Adjudicating Authority observed that it is seen that advance payment received was neither brought to the notice of the proper officer in terms of Rule 6(1A) of ST Rules within the stipulated time nor reflected in the mandatory ST3 Return in the prescribed column. He further observed that the amount of deposit towards the booking of villa from Mr. Vivek Mundra was received on 09.05.2013 and further dates till 31.03.2017 and one amount was received on 05.09.2017. He further observed that the assessee would have paid advance tax in the respective months of advance amount received and reflected the same in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is evident that the prospective buyer Mr. Vivek Mundra had filled in and submitted booking form in the year 2014 and thereafter, the said Mr. Vivek Mundra had started paying amount towards intended purchase of villa. Such amounts received by the appellant/builder towards intended sale of a unit in the residential complex is chargeable to service tax as and when the amount is received in instalments during the construction period. There is no concept of advance tax as understood by Revenue under the provisions of Rule 6(3) of ST Rules. Rule 6(3) of ST Rules reads as under: (3) Where an assessee has issued an invoice, or received any payment, against a service to be provided which is not so provided by him either wholly or partially for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt after issue of credit note to the receiver or refund of the amount along with the service tax. Admittedly, in the facts of the present case, appellant has returned the amount which was received from Mr. Vivek Mundra including the amount of service tax which was deposited by the appellant. It is further urged that in the circumstances, the facts being not disputed and the transaction being through the banking channel, ipso facto proves the bonafide. Further, as the cancellation has been done after 01.07.2017 during the GST regime, where Mr. Vivek Mundra gave written notice of cancellation in August 2018, acting on the same, the appellant refunded the amount through the banking channel spread over some instalments, wherein the last instalm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... digarh on the issue of whether the assessee had paid service tax for services received from abroad from foreign commission agent for sale of agricultural produce and later on they have applied for refund on the ground that tax was wrongly paid as commission paid to agents in respect of sale or purchase of agricultural produce is not taxable under Notification No. 13/2003-ST. The said refund claim was filed prior to the implementation of GST and the refund claim was rejected under the erstwhile provisions. I find that the said ruling is not applicable in the facts of the present case, in view of the transitional provisions of Sec 142(5) of the CGST Act. 16. Having considered the rival contentions, I find that the issue herein is squarely cov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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