Service Tax: Commercial or industrial construction service: Demand: Waiver of pre-deposit and stay of recovery: The work undertaken by the appellant was one awarded to them by the builder namely M/s. SKS Group and that whatever materials and goods were received by the builder from the beneficiary were transmitted to the appellant for being used in the construction service. The builder admittedly paid Service Tax on the gross taxable value including the cost of such materials.(Para 7). The refund claimed by the builder before the original authority is on the ground that they were not liable to pay Service Tax on the taxable value on which the sub-contractor (the present appellant) paid tax. In the present case of the appellant, the main contention is that the Department cannot recover Service Tax on a given taxable value from both the builder and the sub-contractor. If that be so, the issue is very much connected with the one being agitated by the builder through a refund claim before the original authority. Therefore, the original authority should deal with both the matters and pass a common order. Accordingly, the orders of the lower authorities are set aside and appeal is allowed by way of remand with a direction to the original authority to undertake de novo adjudication of the relevant show-cause notice at the time of taking decision on the refund claim filed by M/s. SKS Group. The application also stands disposed of.(Para 8) 

Service Tax: Refund: Delay in filing refund claim: Time bar: The appellants has not been able to show any evidence on record to reflect upon to the fact of refund claim originally filed on 18.01.2008. It is agreed that there no correspondence or any evidence to substantiate their claim. The appellant’s plea that they presented their refund claim 18.01.2008, which was not accepted cannot be held to be valid at this stage. Accordingly, impugned order of Commissioner (Appeal) is upheld and the appeal is rejected.(Para 4)

Service Tax: Refund : Bar of limitation: Section 11B: Remand: The appellants, like buyers of excisable goods from manufacturers, are required to establish that their refund claims are within the statutory period of one year from the relevant date, viz the date on which they paid service tax to the builder. The appellate Commissioner's order is not clear on the dates of payment of service tax to the builder or on the dates refund claims themselves. The appellate authority chose to apply a decision of this Tribunal, which is not good law in view of Allied photographics India Ltd (supra). The original authority did not have the benefit of the applicable case law. For all these reasons, the order of the lower authorities are set aside and remand the matter to the original authority for de novo adjudication. It is made clear that the said authority shall follow the view taken herein with regard to the relevant date. (para 7)

Service Tax: Refund under Notification No. 41/2007-S.T. Dated 6.10.2007: As per Circular No. 112/2009-S.T. dated 12.03.2009.even if the service provided is registered for providing one service refund cannot be denied on the ground that the taxable service provided are not covered under the registration. The documentary evidence showing the collection of service tax from the appellants would meet the requirement of law and the appellants is not expected to produce evidence to show that service provider is actually deposited the dues with the Government. Accordingly, the denial of refund claim on the ground that the appellants is not registered under the “Business Auxiliary Service” is not sustainable. Accordingly, the appeal is allowed with consequential relief by setting aside the impugned order.(Para 4). 

Service Tax: Banking and other Financial Services: Refund: In the present case, initially, the Commissioner (Appeals) granted relief to the respondents. Revenue's application for stay of the Commissioner (Appeals)'s order has been dismissed by the Tribunal. In these circumstances, the Assistant Commissioner has to implement the Commissioner (Appeals)'s order. Moreover, the issues before the Commissioner (Appeals) in the impugned order were only grant of refund by way of cheques and relief in respect of the amounts rejected by the lower authority on account of time bar. Therefore, he was not expected to go into matters, which were not raised before him. The respondents have produced case-laws to show that appeal by department before Tribunal is not maintainable on a new ground which was entirely new from the one taken by the department before Commissioner (Appeals). The Supreme Court, in the case of Warner Hindustan Ltd. v. Collector of Central Excise, Hyderabad - STO 1999 SC 59 held that it is not permissible for the Tribunal to consider a case laid for the first time in appeal. In any case, on going through the records, it is found that the refund itself has arisen on account of the fact that the respondents discharged Service Tax liability on the billed amount while what they received from their customers was much less. In these circumstances, there cannot be any unjust enrichment.(Para 5).

Revenue appeal rejected.