TMI Blog2022 (10) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ater connections. According to the appellant, service tax was deposited by the appellant on such constructed houses by mistake and even the Housing Board deposited 50% of the service tax under reverse charge mechanism. The appellant claimed refund of the service tax deposited by the appellant as also the Housing Board since the Housing Board had awarded the contract in favour of the appellant for a gross amount, inclusive of all taxes and 50% of the service tax paid by the Housing Board was deducted from the amount payable to the appellant by the Housing Board. The appellant further claims that construction of the individual/independent residential houses was not subject to levy of service tax prior to July 01, 2012 and even after July 01, 2012 it was exempted under the Exemption Notification dated June 20, 2012. 5. The Commissioner (Appeals) denied the 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 and the relevant portion of the order is reproduced below : 9. I find that the appellant has contended that the work done by them is not taxable as the houses constructed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability from the contractor bill and contractor will pay its own liability to the excise department . In case the work orders were only for construction of a single residential unit otherwise than as a part of a residential complex then no such clause would have been mentioned in the work order by Rajasthan Housing Board. Furthermore, the appellant has not submitted crucial documents like photographs and drawing and design of the houses constructed by the appellant under these work orders to prove that the houses are single residential unit which are not part of residential complex. The case law cited in defence by the appellant do not come to their rescue as the appellant has failed to prove that they had constructed single residential unit which are not part of a residential complex. Accordingly, I hold that the amount received by the appellant for the work of construction of houses under the three work orders are taxable. 6. The Commissioner (Appeals) also rejected the refund claim on the ground of unjust enrichment. 7. Shri O.P. Agarwal, learned Chartered Accountant appearing for the appellant has submitted that the appellant is clearly entitled to exemption under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices; or (c) Repair, alteration, renovation or restoration of, or similar services in relation to, residential complex; 13. A residential complex‟ has been defined in section 65(91a) of the Finance Act as follows : Residential Complex - Section 65(91a) Residential Complex‟ means any complex comprising of - (i) a building or buildings, having more than 12 residential units; (ii) a common area; and (iii) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system located within a premises and layout of such premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. Explanation :- For the removal of doubts, it is hereby declared that for the purposes of the clause, (a) Personal use includes permitting the complex for the use a residence by another person on rent or without consideration; (b) Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Admittedly, in the present case, the appellants constructed individual residential houses, each being a residential unit, which fact is also clear from the photographs shown to us. In any case, it appears, the law makers did not want construction of individual residential units to be subject to levy of service tax. Unfortunately, this aspect was ignored by the lower authorities and hence the demand of service tax. In this view of the matter, we are also not impressed with the plea made by the appellants that, from 1-6-2007, an activity of the one in question might be covered by the definition of works contract‟ in terms of the Explanation to section 65 (105)(zzzza) of the Finance Act, 1994 as amended. According to this Explanation, construction of a new residential complex or a part thereof‟ stands included within the scope of works contract‟. But, here again, the definition of residential complex‟ given under section 65(91a) of the Act has to be looked at. By no stretch of imagination can it be said that individual residential units were intended to be considered as a residential complex or a part thereof. (emphasis supplied) 18. It needs to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal in Quality Builders Contractor. 22. A Division Bench of the Tribunal in Shri A.S. Sikarwar vs CCE, Indore [Service Tax Appeal No. 871/2011 decided on 20.04.2012] also observed that service tax can be demanded only if the building concerned has more than 12 residential units in the building and such levy will not apply in cases where one compound has many buildings, each having not more than 12 residential units. This decision of the Tribunal was also assailed before the Madhya Pradesh High Court. Central Excise Appeal No. 31 of 2012 was dismissed on 01.08.2013 [Union of India vs Shri A.S. Sikarwar]. The observations are as follows : It is not disputed by the learned counsel for the appellant that the respondent had performed the work of the house construction of 15 HIG at Laxmi Nagar, Ujjain in the financial year 2004-05 to 2006-07. He submitted that the activity of the respondent is liable for Service Tax under the services of Construction of Complex Services as defined under Section 65 of the Finance Act, 1994. It is also not disputed by the learned counsel for the appellant that the Service tax has been paid by the M.P Housing Board. The sole contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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