Anshul Y. Aggarwal vs Commissioner Of Service Tax Ii

Customs Excise and Service Tax Appellate Tribunal2 January 2015

CitationAPPEAL NO. ST/87030/13

Ratio decidendi

The rule this decision rests on

A service provider who has paid service tax on a service he has provided, and who concedes his liability to that tax, is not entitled to a refund of that tax merely because the service receiver was denied CENVAT credit on the same amount; the refund claim fails because liability to tax on the service provider is clear and admitted, and the receiver's denial of credit is a matter to be decided separately in the receiver's own appeal.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II

APPEAL NO. ST/87030/13 ST/CO-91118/13

(Arising out of Order-in-Appeal No. 77 dated 28.02.2013 passed by the Commissioner of Central Excise & Service Tax {Appeals I}, Mumbai I.)

For approval and signature:

Honble Shri P.S.Pruthi, Member (Technical)

1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Yes of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

Anshul Y. Aggarwal

Appellant

Versus

Commissioner of Service Tax II Mumbai

Respondent

Appearance

Shri J.N. Tiwari, Advocate for Appellant Shri for Respondents

CORAM:

Shri P.S.Pruthi, Member (Technical)

Date of Hearing : 02.01.2015 Date of Decision : 02.01.2015

ORDER NO.

Per P.S.Pruthi

The appellant Shri Anshul Y. Aggarwal is in appeal against the order of Commissioner (Appeals) who upheld the rejection of refund claim of Rs.57,407/- by the Dy Commissioner, Service Tax, Mumbai II.

2. The facts are that the appellant rented their premises to M/s.Vako Seals Pvt. Ltd. and paid service tax for the period April 2008 to March 2009 under the category of Renting of Immovable Property Service. As the Central Excise department refused the receiver of service credit of service tax paid by the service provider (appellant) although service was received by him on the basis of invoice issued by the service provider the appellant have applied for refund of service tax paid by them.

3. Heard both sides.

4. The facts are very clear that the service provider is liable to pay service tax on the service provided by him as conceded by the appellant himself. His grievance is that since the service receiver was not allowed to take CENVAT Credit on this amount refund should be allowed to him. The legal position is very clear, there is no doubt about the liability to tax in this case as far as the case of service provider is concerned. A separate appeal has been filed by the service receiver before this Tribunal which will be dealt with separately in accordance with law. In view of the above, the appeal is dismissed.

(Dictated in Court)

(P.S.Pruthi) Member (Technical)

nsk

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