Custom, Excise & Service Tax Tribunal
Nav Vyapar Bhavan Premises Co-Op Socltd vs Commr.Service Tax- on 28 March, 2022
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
MUMBAI
REGIONAL BENCH - COURT NO. 01
Service Tax Appeal No. 87508 OF 2015
(Arising out of Order-in-Appeal No. SR/44/ST-I/2015 dated 31.08.2015 passed by
Commissioner Service Tax (Appeals) - I Mumbai Zone)
Nav Vyapar Bhavan Premises Co- .....Appellant
Op. Soc. Ltd.
226, Vyapar Bhavan, 49, P D Mello Road,
Carnac Bunder, Masjid (E) Mumbai - 400
009.
VERSUS
Commissioner Service Tax- .....Respondent
Mumbai-I 5th Floor, New Central Excise Building, Maharshi Karve Road, Churchgate, Mumbai - 400 020.
Appearance:
Shri V. Rama Rao, Advocate for the Appellant Shri Dilip Shinde, Authorized Representative for the Respondent CORAM:
HON'BLE MR. S.K. MOHANTY, MEMBER (JUDICIAL) FINAL ORDER NO. A/85229/2022 Date of Hearing: 28.03.2022 Date of Decision: 28.03.2022 PER : S.K. MOHANTY Heard both sides and perused the records.
2. Briefly stated, the facts of the case are that the appellant herein is a registered Society and is in occupation of port land belonging to Mumbai Port trust. The property was leased out in favour of M/s. Scindia Steam Navigation Co. Ltd., Mumbai. The appellant had constructed the building over the land leased out for 2 Service Tax Appeal No. 87508 of 2015 MbPT to M/s. Scindia Steam Navigation Co. Ltd. As the owner of the property, the appellant had paid the property tax to the local body i. e. Mumbai Municipal Corporation. The service tax liability attributable to the taxable service namely "renting of immovable property" was discharged by the service provider M/s. MbPT. The service tax amount in respect of the disputed period from June 2007 to December 2009 was paid by the present appellant to M/s. MbPT under protest. Subsequently, the appellant had filed the refund application before the jurisdictional authority, claiming refund of service tax paid on such taxable service. The reason assigned in the refund application was that the benefit of Notification No. 24/2007-ST dated 22.05.2007 was available on the property tax paid on the rental property. Since, both the authorities below have not favourably considered rejected the refund application, the appellant has preferred this appeal before the Tribunal.
3. On careful examination of the case records, it transpires that the issue involved in this case for consideration by the Tribunal is, whether the benefit of Notification No. 24/2007-ST dated 22.05.2007 should be available on the service of renting of immovable property to the extent of the property taxes levied and collected by the local body; and whether the refund claim can be filed by the recipient of service in terms of Section 11B of the Central Excise Act, 1944 made applicable to service tax matters under Section 83 of the Finance Act, 1994.
4. It is an admitted fact on record that the appellant herein is a recipient of service and not the provider of any taxable service. The service tax amount in this case was paid by the appellant to M/s. MbPT on the basis of the invoice issued by such service provider. The question of levaibility of service tax on the taxable service can only be raised by the provider of service, who has been recognised as the person for making payment of service tax into the Government exchequer. Since, there is no connection between the recipient of service i.e. the present appellant and the service tax department, availability of the benefit of Notification No. 24/2007-ST dated 3 Service Tax Appeal No. 87508 of 2015 22.05.2007 cannot be claimed by the appellant. Since, particular issue about availment of the exemption as per the Notification is concerned, the service provider had never raised any issue about the availability of benefit if any, of such exemption notification. Thus, I am of the considered view that the appellant as a recipient of service cannot question the exemption benefit available on the property tax paid on the property. Since, the issue of the exemption benefit is not maintainable under the statute inasmuch as the appellant is not an assessee under the service tax statute, the question of consideration of the refund benefit dose not arise.
5. In view of the foregoing discussions, I do not find any merits in the appeal filed by the appellant. Accordingly, the impugned order sustains and the appeal filed by the appellant is dismissed.
(Dictated and pronounced in the open court) (S. K. Mohanty) Member (Judicial) Sm