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Judgment
Sulekha Beevi C.S., Member (J)
Brief facts are that the appellant filed refund claim for refund of service tax paid by them under renting of immovable property service. After due process of law, the refund sanctioning authority rejected the refund claim which was upheld by the Commissioner (Appeals). Hence the appellant is before the Tribunal.
The learned consultant Shri R. Balagopal appeared and argued for the appellant. It is submitted by the learned consultant that the premises of the appellant was rented out to M/s. Pathfinder Business Analysis (P) Ltd. who was engaged in export of Information Technology and Software Services. They did not include the service tax while paying rent to the appellant. The said tenant instructed the appellant to seek refund of the tax paid by appellant as they were not availing the credit. The appellant has thus filed refund claim. The learned consultant referred to Notification No. 12/2005-ST dated 19.4.2005 as well as Rule 3 of Export of Service Rules, 2005 The decision in the case of Automobile Corporation of Goa Ltd. Vs. CCE, Goa reported in 2013 (31) STR 496 (Tri. Mum.) was also relied. He prayed that the appeal may be allowed.
The learned AR Smt. Anandalakshmi Ganeshram, Supdt. (AR) appeared for the department. The learned AR adverted to para 7 of the impugned order and submitted that there are no grounds for sanctioning the refund claim. The appellant has not exported the services and it is the tenant who has exported the service. The appellant having rented the premises to the tenant and having received the consideration is liable to pay service tax. Notification No. 12/2005 or Rule 5 of the Export of Service Rules, 2005 does not apply to the situation of the case. The authorities have rightly rejected the refund claim.
Heard both sides.
The issue is whether the appellant is eligible for the refund claim. On analysing the facts, we find that the appellant has rented the premises to M/s. Pathfinder Business Analysis (P) Ltd. who are engaged in providing export of IT services. It is not the case of the appellant that they are engaged in export of services or that the services of renting of immovable property is an input service for them. The appellant ought to have collected service tax from the tenant along with rent. Even if the tenant is engaged in export of services, there is no provision for the appellant who is a service provider to claim refund. Therefore, we find that the provisions under Rule 3 of Export of Service Rules, 2005 or the Notification No. 12/2005 dated 19.4.2005 are not applicable to the case of the appellant. The decision cited by the learned consultant is not at all applicable to the facts of the case.
From the foregoing, we do not find any merit in the appeal. Appellant has no grounds to claim refund. The impugned order is upheld. The appeal is dismissed.