TMI Blog2010 (6) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... d a show cause notice was served to the appellants on 31.12.2007 on various grounds. The Assistant Commissioner adjudicated the said show cause notice vide impugned order wherein he rejected the claim for refund. Held that- Chartered accountant’s certificate stating service tax not received. Unjust enrichment not attracted and refund admissible. - ST/68/2009 - A/855/2010-WZB/AHD - Dated:- 24-6-2010 - Ms. Archana Wadhwa, Member (J) and Shri 13.S.V. Murthy, Member (T) REPRESENTED BY: Shri R.S. Sarova, JDR, for the Appellant. Shri Bishan R. Shah, C.A. , for the Respondent. [Order per Archana Wadhwa, Member (J)]. - Being aggrieved with the order passed by Commissioner (Appeals) Revenue has filed the present appeal. We ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commercial complex. In as much as their agreement with the client was only in respect of the road and the service tax in question has not been collected by them from their clients, they are entitled to the refund of the service tax amount of Rs.2,78,735/- 4. While dealing with the above contentions of the respondents, Commissioner (Appeals) observed as under: "5.1 There is no dispute that the '"road" is excluded from the purview of the service tax as per the clear law provisions which reads as under: (25b) "Commercial or Industrial Construction Service' means- (a) construction of a new building or civil structure or a part thereof; or (b) construction of pipeline or conduit; or (c) completion and finishing services such as glazing, plas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separate activity as per the contract, then the service tax would be leviable on the gross amount charged for construction including the construction of roads. As seen from the above it is clear that if the contract for roads is separate no service tax is leviable. In the present case, the contract between the appellants and their client is only for roads. The term "Driveway work" used in the agreement is in relation to road work as can be seen from the Annexure-2 to the agreement. The adjudicating authority has erred in interpreting the description excavation, repair of pot holes, etc. as part of construction service and not related to road work. Further, the narration "Bitumen Carpet and Pavers Block'" used in the invoices raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable. Revenue has also challenged the grant of refund on the ground of unjust enrichment. 7. After carefully considering the submissions made by both the sides we find that it is an admitted fact by both the sides that the construction of road does not require payment of service tax. The Revenue's only appeal is that construction of driveway cannot be equated with the construction of road in as much as such driveway was not for public utility purpose but the same was in connection with the petrol pump owned by the owner. In this connection we find that the Board's Circular No.B1/6/2005-TRU dated 27.07.05 is to the effect that - "if the contract for construction of commercial complex is a single contract and the construction of road ..... X X X X Extracts X X X X X X X X Extracts X X X X
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