2014 (3) TMI 694 - CESTAT AHMEDABAD

Refund - Taxability of service - construction of complex service or works contract service - residential complex having more than 12 residential units - agreements entered into by a builder/promoter/developer with prospective buyers for construction of residential units in a residential complex against payments being made by the prospective buyers in instalments during construction - Held that:- such contracts are to be treated as works contracts, it has to be held that during the period of dispute, there was no intention of the Government to tax the activity in terms of such contracts a builder/developer with prospective customers for construction of residential units in a residential complex. Such works contracts involving transfer of immovable property were brought within the purview of taxable service by adding explanation to Section 65 (105) (ZZZh) w.e.f. 01/7/10, and therefore, it has to be held that such contracts were not covered by Section 65 (105) (ZZZh) during the period prior to 01/7/2010. - Decided in favor of assessee.

Tribunal in the case of CCE, Chandigarh vs. U.B. Construction (P) Ltd. [2014 (1) TMI 402 - CESTAT NEW DELHI] has held that the explanation to Section 65 (105) (ZZZh) added w.e.f. 01/7/10 expands the scope of this clause and hence the same is not a clarificatory amendment and, as such, it cannot be given retrospective effect and accordingly during period prior to 01/7/10, when this explanation was not there, no service tax can be charged on the amount received by the builders/developers from the prospective buyers, that same view has been taken by the Tribunal in the case of R.F. Properties & Trading Ltd. vs. CCE, Jaipur [2013 (7) TMI 44 - CESTAT NEW DELHI] that in view of this, in both the cases, the appellant/respondent are eligible for refund on merits

Refund - period of limitation - Held that:- since in terms of the findings of the Commissioner (Appeals) which have not been disputed, the service tax had been paid under protest, the limitation period would not apply.

Unjust enrichment - Held that:- there is no evidence that they had charged any amount towards service tax from their customers. The presumption under Section 12B of the Central Excise Act, 1944 is a rebuttable presumption and when an assessee shows invoices issued by him is support of his claim that no amount representing service tax had been charged by him from his customers, the burden would shift to the department to produce evidence that the incidence of the tax, paid whose refund is sought had been passed on to the customers. In this case, no such evidence has been produced by the department. - Refund allowed.