TMI Blog2022 (3) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... a project of a buyer would not only include the element of cost of Service Tax but also the value of undivided share of land which would be acquired by the buyer. In the present case admittedly the service provided is of not work contract service but is a simplicitor contract of construction of residential building. The impugned explanation to the extent that it seeks to include composite contracts for purchase of units in a complex within the scope of taxable service is set aside. It was held that if the concerned officer of respondent No. 1 shall examine whether the builder has collected any amount as service tax from the petitioners for taxable service as defined in Section 65(105)(zzzh) of the Act and has deposited the same with the respondent authorities, any such amount deposited shall be refunded to the petitioners with interest at the rate of 6% from the date of deposit till the date of refund. It is observed that Chartered Accountant certificate of the auditor of Emaar, the builder as annexed on record is sufficient to show that Emaar has duly paid the Service Tax for the period 2011-12 to 2017-18, which includes the period in question. Further it is also acknowledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53,821/- on 8.5.2019 in Appeal No. ST/50787/2021. However, the deficiency memo was issued to both the appellants and their refund claim was rejected vide respective Order in Originals as mentioned in the order above. The appeals thereof have been rejected in both the case vide Order-in-Appeals as tabulated above. Still being aggrieved both the appellants are is before this Tribunal. 2. I have heard Shri Sourabh, learned Counsel appearing for the Appellant and Ms Tamana Alam, learned Authorised Representative appearing for the Department. 3. Learned Counsel has submitted that refund claim has wrongly been rejected as it amounts to violation of directions of Hon ble Delhi High Court in the case of Shri Suresh Kumar Bansal. It is submitted that there was incorporated retrospective amendment in Rule 2A of Service Tax Valuation Rules but to counter the said retrospective amendment there has been decision in favour of the appellant by Hon ble High Court of Delhi itself in the case of Ruchi Goyal vs NBCC (India) Ltd. reported as [2019(29) GSTL 392 (Del)]. Learned Counsel has further impressed upon that there is sufficient evidence on record to prove that the appellants have borne th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in project by Developer. The refund in question has been filed based upon aforesaid decision with respect to such amount of Service Tax as was already paid by the appellants. The adjudicating authority have rejected the claim relying upon the retrospective amendment under Rule 2A of Service Tax Valuation Rules. The moot controversy therefore is as to whether the said amendment applies to the facts of the present case. Rule 2 A reads as follows: 2A. Determination of value of taxable services involved in the execution of a works contract. - Subject to the provisions of section 67, the value of taxable service involved in the execution of a works contract (hereinafter referred to as works contract service), referred to in clause (8) of section 66E of the Act, shall be determined by the service provider in the following manner, namely :- (i) Value of works contract service shall be equivalent to the gross amount charged for the works contract less the value of transfer of property in goods involved in the execution of the said works contract. Explanation . - For the purposes of this clause, - (a) gross amount charged for the works contract shall not include value add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditions and alterations to abandoned or damaged structures on land that are required to make them workable; (II) total amount means the sum total of gross amount and the value of all goods, excluding the value added tax, if any, levied on goods and services supplied free of cost for use in or in relation to the execution of works contract, under the same contract or any other contract : Provided that where the value of goods or services supplied free of cost is not ascertainable, the same shall be determined on the basis of the fair market value of the goods or services that have closely available resemblance; 6. The perusal therefore, makes it clear that the said rule provides the mechanism to separately determine value of land and value of goods under a Works Contract Service. The gross consideration charged for construction of complex service by builder promoter of a project of a buyer would not only include the element of cost of Service Tax but also the value of undivided share of land which would be acquired by the buyer. In the present case admittedly the service provided is of not work contract service but is a simplicitor contract of construction of residentia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs with the builder. 8. Hon ble Delhi High Court in the case of Ruchi Goyal vs NBCC (India) Ltd. reported as [2019 (29) GSTL 392 (Del)] has given further clarity about the non-applicability of the amendment in Rule 2A of Valuation Rules with respect to the leviability of Service Tax upon the construction of residential complex service, it has been clarified as under: 4. It does appear to the Court that the amendment to Rule 2A is specific to a works contract since the title of Rule 2A itself reads determination of value of service portion in the execution of the works contract. In para 23 of the decision of this Court in Suresh Kumar Bansal (supra), this Court noted that while Section 65(105)(zzzza) deals with works contract and it is possible to argue that a composite contract for the development of complex and sale of units could fall within its scope, this Court did not propose to examine that issue since the entire argument revolved around the scope of taxable service as envisaged in Section 65(105)(zzzh) of the Finance Act, [1994] which is specific to construction of complex . Therefore, there is merit in the contention of the Learned Counsel for the respondent that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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