TMI Blog2019 (8) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... dication as well by Commissioner (Appeals) as this is a settled law in various judgements - reference can be made to the case of PRINCE KHADI WOOLLEN HANDLOOM PROD. COOP. INDL. SOCIETY VERSUS CCE. [ 1996 (11) TMI 72 - SC ORDER] - thus, both the authorities who have decided the issue that the services provided by the appellant is not of works contract and consequently rejected the refund claim, is absolutely illegal and incorrect. Whether there is unjust enrichment or otherwise? - HELD THAT:- The appellant has not passed the incidence of refund amount of ₹ 14 lakhs to any other person. Against this finding no challenge was made by the department. Therefore, this issue on unjust enrichment attained finality in favour of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s withdrawn. Thereafter, the appellant continued to pay the service tax on construction services. The Central Government inserted section 102 in the Finance Act, 1994 to enable the assessee to claim refund of Service Tax paid during the period 01/04/2015- 29/02/2016. In view of insertion of section 102 in the Finance Act, 1994, the appellant filed refund claim of ₹ 14 lakhs paid for construction of building of Institute Of Kidney Disease as sub constructor of M/s Malani Construction. The appellants were issued a Show Cause Notice bearing F NO. SD/02/REF-85/2016-17 dated 23/09/2016 proposing to reject the refund claim filed by the appellant on the ground of unjust enrichment. The Adjudicating Authority, ie., Ld. Assistant Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant. 2. Shri Jigar Shah, Ld. Counsel appearing on behalf of the appellant submits that as against the filing of refund claim, the show cause notice issued to the appellant only raised the issue of unjust enrichment. Therefore, the other issues that whether the service is of works contract or otherwise was not the issue raised in the show cause notice. However, the order is dealt with the aspect of nature of services which is beyond the scope of show cause notice. In this regard, he placed reliance on the following judgments: 1. Prince Khadi Woolen handloom Prod. Coop. Indl. Society v/s CCE 1996 (88) ELT 637 (SC) 2. Reckitt Colman of India Ltd. v/s CCE 1996(88) ELT 641 (SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCN even though on that aspect also in their favour. He submits that activities carried out is in fact working contract. Revenue authority has also ignored the documentary evidences produced by the appellant, merely to reject the refund claim. He submits that the appellant have provided the work contract services along with the material such as M.S. wire, while performing the construction of activity. Therefore it is works contract. The appellant have submitted by the relevant documents which prove beyond doubt that they had performed works contract services only. He submits that since appellant provided works contract service which was valued less than ₹ 5lakh, there was not requirement of obtaining registration under the VAT law. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC) 2. Reckitt Coleman of India 1996(88) ELT 641 (SC) 3. Reliance Ports Terminal 2016 (334) ELT 630 (Guj.) 4. Ballarpur Industries 2007 (215) ELT 489 (SC) 5. GAIL 2008 (232) ELT 7 (SC) In view of above settled laws, both the authorities who have decided the issue that the services provided by the appellant is not of works contract and consequently rejected the refund claim, is absolutely illegal and incorrect. Therefore, the findings as regard the issue of works contract is quashed and set aside. Now the issue remains to be decided is that whether there is unjust enrichment or otherwise. As regard unjust enrichment, even the Ld. Commissioner (Appeal) in Para 10 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per our contract conditions. M/s Malani construction also issued a certificate stating that M/s Aahir Construction has paid the Service Tax from their own funds and have not recovered the same from us. Since the services provided to the Govt., a local authority or governmental authority by way of construction of civil structure meant predominantly for use other than commerce, industry or any other business or profession is exempted under notification no. 09/2016-ST dated 11/03/2016 read with section 102 in the Finance Act, 1994. We have not paid the service tax to the said Aahir Construction and have advised them to take refund of service tax from the service tax department in view of the retrospective exemption. It is also observed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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