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TMI Blog2024 (1) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... h. Learned advocates for the respective respondents waives service of notice of Rule. 1.2 Having regard to the controversy in narrow compass and with the consent of learned advocates appearing for the respective parties, the matters are taken up for final consideration. 2. Both these petitions are arising from the similar facts and therefore, they were heard together and are being disposed of by this common judgment. 2.1 For the sake of convenience, Special Civil Application No.969 of 2023 is treated as a lead matter. 3. By this petition under Article 227 of the Constitution of India, the petitioners have prayed for the following reliefs. (A) this Hon'ble Court be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari under Article 226 of the Constitution of India, calling for the 3rd Order-in- Original No. No CGST/VI/Ref-19/ Pankaj Bagri/AC/DAP/2022-23 dated October 7, 2022 passed by Respondent No. 2, after going into the validity and legality thereof to quash and set aside the same (Exhibit-A); (B) this Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction ordering and directing Respondent No.2 to forth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not possible to be bifurcated from the total consideration charged by the developer to the claimant. As per the decision of the Hon. High Court, the exemption from Service Tax is not applicable on the preferential value charges. In absence of bifurcation, it is not possible to determine the value on which the service tax ought to be paid by the claimant. - The claimant has failed to provide the following documents: a) Form R for refund application; b) Receipt of Service Tax of Rs. 11,93,447/ issued by Service Provider; c) Relevant ST 3 Return under which the Service Provider has paid Service Tax; and d) No objection certificate from the Service Provider. - It has been further alleged that in absence of ST 3 Returns of the service provider, it cannot be ascertained whether they have taken Cenvat of input services which are used in taxable as well as exempted services or whether they have maintained separate account of Cenvat credit used in exempted services as well as taxable services. - Since the services provided by them become exempted as per the Hon. High Court decision, the service provider is required to reverse 6% amount of the exempted value of the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 rejected the refund claims filed by the petitioners. The petitioners, being aggrieved, preferred appeals before the Commissioner (Appeals) who, by order dated 30th September, 2020 in case of petitioners of Special Civil Application No.969 of 2023 and by order dated 13th October, 2020 in case of petitioners of Special Civil Application No.973 of 2023, ordered for de novo adjudication following the ratio of the decision of the CESTAT. Since both the refund claims pertain to the same property and since the first refund claim was already sanctioned by the department, the second refund claim was also allowed. 4.10 On remand, the respondent-department again issued second show-cause notice on 20th January, 2021 (hereinafter referred to as 'the second show-cause notice') on the following discrepancies to reject the refund claim. - The period involved in the case of Shri Suresh Kumar Bansal is prior to 2010 (i.e. prior to the amendment made by the Finance Act, 2017 retrospectively). Since the period involved in the present case is June 2017, the aforesaid decision is not applicable. - The department has filed SLP in the Supreme Court against the aforesaid High Court decision and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by letter dated 19th September, 2022, requested for adjournment of two weeks as the notice was received after the date fixed for personal hearing. Another personal hearing was granted on 29th September, 2022 without acceding to the request of the petitioners and the impugned third oil was passed ex parte rejecting the refund claim on 07th October, 2022 in both the cases on the ground of deciding the eligibility of the refund claim, calling for evidences like payment of service tax, no objection certificate from the builder along with the declaration from the builder that they shall not claim the refund of the said amount inspite of the fact that on the said grounds the appeals have already been allowed by the order of the CESTAT and two orders of the Commissioner (Appeals). 5. Learned advocate Mr.Raichandani for the petitioners submitted that the impugned Order-in- Original is challenged before this Court inspite of there being alternative efficacious remedy as the impugned order is passed without jurisdiction and contrary to the directions issued by the appellate authority though the refund claims have been decided by the CESTAT by order dated 10th May, 2019 allowing petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also placed on sub-para IV of Para-2 of the Instructions issued by CBEC dated 11th March, 2015 which categorically mentions that "judicial discipline should be followed while deciding pending show cause notices / appeals.". It was submitted that Circulars and Instructions issued by the CBEC are binding upon the respondent-department and they are required to be followed in view of the following decisions - (i) Paper Products Limited v. CCE [1999 (112) E.L.T. 765 (S.C.)], (ii) Collector of Central Excise, Vadodara v. Dhiren Chemical Industries [2002 (143) ELT 19 (SC)], (iii) CCE v. Usha Martin Ltd. [1997 (94) ELT 460 (SC)] and (iv) Darshan Boardlam Ltd. v. UOI [2013 (287) ELT 401 (Guj. HC)]. 5.4 Reliance was also placed on the decision of Karnataka High Court in case of General Commodities Pvt. Ltd. v. Commissioner of Service Tax, Bangalore [2011 (23) STR 14 (Kar.)] wherein, in similar facts, second show-cause notice issued in violation of the final order passed by the Tribunal was quashed and set aside. 6. On the other hand, learned advocates for the respondents submitted that the Commissioner (Appeals) in order dated 30th September, 2020 specifically directed the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned advocates appearing for the respective parties and having considered the facts of the case, it is not in dispute that the third show-cause notice has been issued by the respondent No.2 on the same ground which has already been set aside by the order of the Tribunal and two orders of the Commissioner (Appeals). On perusal of the second show-cause notice and the third show-cause notice, there is no difference in the grounds for rejecting the second refund claim. The CESTAT in order dated 10th May, 2019 while considering the challenge in case of first refund claim while allowing the Service Tax Appeal No.11353 of 2018 and Service Tax Appeal No.11354 of 2018 held as under. "4. Heard both the sides and perused the records. I find that the appellants are buyers of the flats. As per the documents submitted by them it clearly establish that for purchase of the flat the appellant have borne the service tax liability which was paid and collected by the service provider i.e. Builder. In this position the appellant are prima facie entitled for the refund. I fail to understand that why the department is insisting for all those documents which are not in possession and control of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018-19 dated 22.11.2019. 20. In view of the above discussion and following the judiciary discipline. I find that the said claimant is eligible for the refund claim of Rs. 11,93.447/- and accordingly 1. proceed to issue the following order- ::ORDER:: (i) I sanction the refund claim amounting to Rs. 11,93,447/- (Rupees Elevan Lakh Ninety Three Thousand Four Hundred Forty Seven only) as claimed by Shri Pankaj Kumar Bagri & Neha Bagri, 1702, C Wing, Western Heights, Four Bunglows, Andheri (West), Mumbai- 400058 under Section 11B of Central Excise Act, 1944 as made applicable to Service Tax vide Section 83 of the Finance Act, 1994. (ii) I also sanction interest amounting to Rs. 2,07,758/ in terms of Section 11BB of the Central Excise Act, 1944 to Shri Pankaj Kumar Bagri & Neha Bagri, 1702, C Wing, Western Heights. Four Bunglows. Andher (West), Mumbai-400058." 7.2 The second refund claim of the petitioners was rejected by the Order-in-Original dated 28th September, 2018 on the same grounds which were raised while rejecting the first refund claim. The appellate authority by order dated 30th September, 2020 set aside the Order-in- Original and remanded the case to the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) As per amendment in Rule 2A of service tax (Determination of Value) Rules, 2006 made through the Finance Act, 2017, the builder has taken consideration from their buyer as decided mutually by them prior to BU permission and hence, service tax is correctly levied and collected & paid by the builder and there is no question of refund is arise. (c) the period involved in the case of Shri Suresh Kumar Bansal is prior to 2010 (I.e. prior to the legislature amendment made by Finance Act, 2017 retrospectively). However, the period involved in the present case is June- 2017, therefore, the judgment of Hon'ble High Court of Delhi passed in the case of Suresh Kumar Bansal & Anuj Goyal & Others v/s. Union of India [2016 (6) TMI 192 Delhi High Court is quietly not applicable in the present case as the same has already been amended by the Parliament with retrospectively. (d) The subject judgment has not attained finality as the appeal against the said judgment has been filed by the department (reported in 2016 (43) S.T.R. 3 (Del)) and admitted by the Hon'ble Supreme Court on 15.11.2016 and same is pending for decision (Union of India v. Suresh Kumar Bansal 2017(4) G.S.T.L.J 128(S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the second refund claim could not have been rejected on the same grounds as the orders passed by the CESTAT as well as appellate authority are binding upon the adjudicating authority being the subordinate authority. 8.1 The respondent - adjudicating authority has also failed to consider letter dated 04th July, 2022 filed by the petitioner with the respondent giving all the details and the documents as required including the letter from the developer/service provider acknowledging the receipt of payment and service tax from the petitioners, statement of payments made to the developer, bank statement evidencing payments to the developer, TDS Challan for payments and declaration of the developer that the service tax refund claim has not been filed with any other service tax division. 8.2 The respondent authority has not taken into consideration any of the documents made available by the petitioners coupled with the fact that first refund claim has already been allowed after the CESTAT passed the order by the Assistant Commissioner, CGST Division-VI, Ahmedabad South, vide order dated 28th November, 2019 as reproduced hereinabove. 9. In view of the foregoing reasons, the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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