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2015 (5) TMI 341 - AT - Service TaxRefund claim - Unjust enrichment - period of limitation - whether the activity of construction of residential flats which are ultimately sold to the buyers is a transaction of sale of goods or rendering the services - Held that:- appellant has written the letter to CBEC on 7.6.2006 before the period of dispute for clarification whether they are liable to pay service tax on their activity or not and also clearly mentioned that department is pressurizing them to pay the service tax on their activity. I further find that letter to concerned Asstt . Commissioner on 7.6.2006 have clearly mentioned that appellant is depositing Service Tax under the pressure of department. As there is no prescribed form to raise protest for payment of service tax under the provisions of Finance Act, 1994, the letter written to Asstt . Commissioner placed before me by the appellant, clearly shows that service tax paid by the appellant is under protest. For deposits made under protest, the provision of section 11B of the Central Excise 1994 are not applicable. Appellant has written letters to the intended buyers of the flat that the dispute is going on between the appellant and CBEC about whether service tax is payable or not and in these letters it is clearly mentioned that the price agreed by the buyers is not inclusive of service tax and appellant is paying service tax from their own pocket if later on liability of service tax arises, the same will be paid by the intended buyers of the flat along with the agreed price of the flat. Further this fact has been certified by the Certificate issued by the Chartered Accountant and amount recoverable as service tax as reflected in their balance sheet . Therefore, I hold that appellant has discharged their burden of unjust enrichment. In these circumstances, the appellant is entitled to refund claim - Decided in favour of assessee.
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