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2019 (4) TMI 128 - AT - Service TaxRefund of service tax - Construction of Residential Complex Services or not - refund claimed on the ground that they were not liable to payment of service tax under the said category as per the CBEC Circular No. 108/02/2009-ST dated 29.01.2009 - principles of unjust enrichment - Held that:- Tribunal in the case of M/s. Real Value Promoters Pvt. Ltd. [2018 (9) TMI 1149 - CESTAT CHENNAI] has held that in case of composite contracts, the activity cannot be subjected to levy of service tax under the category of Construction of Residential Complex Service (CRCS)/Commercial or Industrial Construction Service (CICS)/Construction of Complex Service (CCS). Even if the activity/service is not subject to levy of service tax, it has to cross the hurdle of not being hit by unjust enrichment. In the present case, the Department has alleged that the appellants have shown the said refund amount in their Books of Account as expenditure. This apart, the appellant has not raised any invoices. Thus, it is not forthcoming from the records whether the appellants have passed on the burden of tax to another person or not - That such workings/calculations are after giving the appellant the benefit of cum-tax. This has to be verified. For the purpose of verifying as to whether the demand is hit by unjust enrichment, the issue requires to be remanded to the adjudicating authority, who shall verify the same - appeal allowed by way of remand.
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