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2022 (10) TMI 427 - AT - Service TaxRefund of service tax - amount said to have been deposited by mistake on construction of individual/independent residential houses - period from 01.04.2013 to 31.03.2014 - reverse charge mechanism - denial of refund of service tax paid for the reason that the appellant would not be entitled to claim benefit of the Exemption Notification dated June 20, 2012 - HELD THAT:- It is true that w.e.f July 01, 2012 ‘construction of complex‟ is a declared service, but the Exemption Notification exempts services by way of construction, erection, commissioning or installation of original works pertaining to a single residential unit otherwise than as a part of a residential complex have been exempted - the Commissioner (Appeals) was not justified in holding that the appellant would not be entitled to the benefit of the Exemption Notification. The Commissioner (Appeals) was also not justified in holding that the refund was hit by the principles of unjust enrichment. As per the work orders, service tax was to be borne by the appellant and the Commissioner (Appeals) has also found, as a fact, that the contract awarded by the Housing Board to the appellant mentions that service tax shall be borne by the contractor - Even in accordance with the Exemption Notification dated June 20, 2012, 50% of the tax to be deposited by the Housing Board under the reverse charge mechanism was deducted by the Housing Board from the amount payable to the appellant. The Commissioner (Appeals) was, therefore, not justified in rejecting the refund claim of the appellant on the ground of unjust enrichment. Relevancy of documents submitted with the refund claims - HELD THAT:- The appellant had submitted with the refund applications copies of work orders against which work was done during the refund period, ST-3 returns of the relevant period, Form 26AS, VAT-41, copies of challans and copies of running bills prepared by the Housing Board showing deduction of service tax out of amount paid to the appellant. Further, the total tax deposited by the appellant and also deducted by the Housing Board is far more and more than the refund claim and that the appellant had claimed refund only in respect of tax deposited on construction of individual houses and corresponding tax deducted by the Housing Board on such construction. The order dated August 04, 2016 passed by the Commissioner (Appeals), therefore, cannot be sustained and is set aside - Appeal allowed.
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