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2014 (9) TMI 597 - AT - Service TaxRefund claim - issue of taxability - period of limitation - service tax was paid as builder/developer - appellants contended that service was not taxable before 01.07.2010 and therefore they are eligible for the refund. - Held that:- prior to 01.07.2010 the service in dispute in these cases was not taxable - transactions before us where individuals have entered into agreements for purchase of flats/residences with the builder/developers, in our opinion, is not covered by the definition. Period of limitation of one year where levy is unauthorized and illegal - When the levy is unauthorized or illegal, the refund has to be sanctioned under Limitation Act according to the appellants. - Held that:- It is not a case of payment during investigation and collected as arrears from buyers or customers. It is an assessment made by the service provider in accordance with law, collected by him in accordance with law and deposited with the government in accordance with law. The character of such deposit of the duty or tax does not change just because subsequently it is found that tax was not payable. It remains a tax collected in accordance with law and can be refunded under the provisions of the relevant law. - provisions of section 11B are applicable. - Decided against the assessee. Claim of refund by the service recipient (buyers) - revenue contended that refund can be made only when the claimant shows that the tax has been paid to the Government. - Held that:- Nowhere we find the word 'government' in relation to the refund claim made by a buyer under the section and Section does not provide that only when there is evidence to show that tax has been paid to the Government refund would be admissible to the buyer of the goods/services. - it is sufficient if the buyer shows that he has paid the service tax to the registered service/goods suppliers/providers and there is evidence to the effect that the service tax has been collected from him by the registered service provider. - Decided against the revenue. Determination of relevant date for claiming refund - whether the service tax which was assessed by an assessee and paid to the Government can be considered as covered under the provisions of Section 73A at all. - Held that:- the provisions for refund in section 73A of 1994 Act cannot be applicable to the situation where a service tax is collected in a legal manner in accordance with law and paid to the Government in accordance with law under a wrong assumption that service tax was liable to be paid. Therefore the remedy is in Section 11B of the Act and not under Section 73A of 1994 Act. - Decided against the assessee. Unjust enrichment - Held that:- buyer who is claiming the refund should produce (a) a copy of the Sale Deed to show that he had purchased the property after the agreement ended. (b) Further, he should also show proof that service tax was charged and he had paid the same. (c) Further, at the time of filing the refund claim it should be shown that he had not parted with the property and had not sold it. (d) For this purpose, an Encumbrance Certificate (EC) obtained from the Registrar, which will show that the buyer was in possession at the time of making refund claim would be one of the documents, in our opinion, would be sufficient for the purpose. (e) An undertaking may also be given by the claimants stating that they have not passed on the liability of service tax to any other person and the entire amount of service tax has been paid and borne by them. Matter remanded back to the original adjudicating authority who shall proceed to decide the matter afresh after giving opportunity to the appellants to present their case in line with the observations made hereinabove. - Decided partly in favor of assessee.
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