TMI Blog2023 (9) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... her, admittedly, it is the appellant, who has borne the tax. Admittedly, the appellant have paid the part of tax by challan and part of the tax has been deducted by the Rajasthan Housing Board from their bills, and deposited under RCM. Accordingly, the appellant is entitled to the refund under dispute. Scope of SCN - HELD THAT:- The Commissioner (Appeals) have erred in travelling beyond the scope of show cause notice by observing that RHB may have availed the cenvat credit and further observing that the appellant have not challenged self-assessment, at any point of time and further, where the tax is paid under mistake and the same has been accepted by the Revenue, there is no question of filing appeal against such self-assessment. More ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the lower authorities have rejected the refund on limitation and unjust enrichment. 3. The appellant was engaged in construction of residential houses/complex and was registered with the department. For the period 2013-2014, the appellant had done construction work of residential houses for Rajasthan Housing Board and also construction in respect of houses under EWS and LIG scheme. The appellant deposited the service tax by mistake and later they realised that the service tax is not payable by them as their services are exempt under Sl.No. 14 (c ) of Notification No. 25/2012 ST dated 20.06.2012. Accordingly, the appellant filed refund claim on 18th of October 2021. Thereafter, show cause notice dated 22nd December, 2021 was issued pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Accordingly the claim amount comprises the amount paid by the appellant through challans, that Rs.8, 83, 997 and Rs.8,85,110/- paid by RHB under RCM, thus totaling Rs.17,69,107/-. 6. Learned counsel further urges that the Hon ble Allahabad High Court have held in CCE and ST versus Indian Farmers Fertilizers Cooperative Ltd 2014 (35) STR 492 (All.) that refund can be claimed by any person, who has borne the incidence of tax. He further relies on the ruling of this Tribunal in the case of S.P. Builders, Jodhpur , where the Division Bench have held that service tax deposited by the assessee on construction of individual/independent residential houses, which was held by the Tribunal to be exempt from tax. Further, as per work orders, ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The said ruling of Karnataka High Court have been affirmed by the Hon ble Supreme Court reported at 2018 (14) GSTL J 70 (SC). Similar view was taken by the Hon ble Supreme Court in the case of Shiv Shankar Dal Mills etc. Vs. State of Haryana Ors. AIR 1980 SC 1037. 8. Learned Counsel also refers to the 3rd Member ruling of this Tribunal in the case of Credible Engineering Construction Vs. CCE . There was a difference of opinion under similar facts and circumstances, where service tax was paid by mistake and thereafter, the refund was claimed. Both the members of the Division Bench had agreed that the assessee is entitled to refund on merits, as the tax has been paid under mistake, as the assessee was eligible for exemption under Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent/Department, relies on the impugned order. He further urges that the amount of Rs. 8,85, 110/-, which was deducted by RHB from the bills or amount payable to the appellant- assessee, the same was in respect of discharge of service tax liability by the Board under the reverse charge mechanism. The said service tax was paid by the Board under its registration number and hence claim by the appellant- assessee of the said amount is not permissible under the law. 14. Having considered the rival contentions, I find that the issue involved is no longer res integra. In the aforementioned rulings, under the similar facts and circumstances, the Hon ble Karnataka High Court in the case of K.V.R Constructions (supra) have held that no limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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