Case Law Details
Smt. Rashmi Nayak Vs Commissioner of GST (CESTAT Kolkata)
The Kolkata CESTAT disposed of an appeal challenging rejection of a Service Tax refund claim relating to land leased to Tata Steel. During audit, the Revenue found that the appellant had leased out land and directed payment of Service Tax on the consideration received. The appellant paid the tax in September 2015 and subsequently filed a refund claim on 3 August 2016, contending that no Service Tax was payable.
The Revenue issued a show cause notice stating that the appellant had voluntarily admitted liability by paying the tax and called upon the appellant to produce documentary evidence establishing that the Service Tax amount of ₹9,65,148 had not been recovered from the lessee. The Adjudicating Authority rejected the refund claim, and the Commissioner (Appeals) upheld that decision.
The Tribunal held that the interests of justice required granting the appellant an opportunity to produce supporting evidence before the Adjudicating Authority. It directed the appellant to furnish documentary evidence supporting the claim that Service Tax was not payable, including evidence regarding the nature of the land lease, if relied upon, and proof that the Service Tax amount had not been collected from the lessee. The Tribunal further directed that all documents and transaction details be certified by a Chartered Accountant. The appellant was granted four months to submit the documents, and the Adjudicating Authority was directed to complete the adjudication within two months thereafter.
FULL TEXT OF THE CESTAT KOLKATA ORDER
No one has appeared on behalf of the appellant. The appeal has been filed in 2022 and this issue is in a narrow compass. Therefore, I have taken up appeal itself for disposal with the help of the Ld. Authorized Representative.
2. From the adjudication proceedings taken up by the Revenue, I find that the audit came visiting the appellant’s unit and has found that they have leased out some land to Tata Steel. On the consideration received by the appellant, the audit asked the appellant to pay the Service tax which was paid by them in September, 2015. Subsequently, the appellant has filed a refund claim for such debited amount on 03.08.2016, taking the ground that no Service Tax was payable in the first place.
3. A Show Cause Notice was issued seeking to know as to why the refund claim should not be dismissed on the ground that appellant had already admitted that they are liable to pay Service Tax and had paid the same voluntarily. The Show Cause Notice also directed the appellant to provide documentary evidence to the effect that the amount of Rs. 965148/- was not realised by them from the lessee. After the due process, the Adjudicating Authority rejected the refund claim. On appeal, the Commissioner (Appeal) has also dismissed the same. Being aggrieved, the appellant is before the Tribunal.
4. After going through the documents placed before me, I take the view that interest of justice would be served if the appellant is given an opportunity to produce the documentary evidence before the Adjudicating Authority. The appellant is required to produce the evidence to make his submission as to why the Service Tax is not payable by them. If they take the stand that the land has been leased (which is not for any commercial purpose), proper documentary evidence is required to be submitted. They also have to provide documentary evidence that the Service Tax of Rs.9,65,148 has not been claimed by them from the lessee. All these documents alongwith the details of the transactions made should be certified by the Chartered Accountant and presented to the Adjudicating Authority.
5. Since the issue pertains to the year 2010-11 to 2013-14, the appellant is directed to co-operate with the Adjudicating Authority and file all the documents within 4 months of the receipt of this order. The Adjudicating Authority should complete the adjudication process within 2 months from the date on which all the documents are provided by the appellant.
6. This appeal stands disposed on the above terms.
(Dictated and pronounced in the open court)
Author Bio
