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2020 (2) TMI 344 - AT - Service TaxRefund of service tax - construction of complex service - levy of tax on the said service, ultra vies or not - refund sought following the decision of the Hon'ble High Court of Delhi in SURESH KUMAR BANSAL & ANUJ GOYAL & ORS. VERSUS UNION OF INDIA & ORS. [2016 (6) TMI 192 - DELHI HIGH COURT] declaring that, in the absence of machinery provision for segregation of service component of consideration, the levy would be ultra vires - refund rejected on the ground that the decision of the Hon’ble High Court of Bombay, in MAHARASHTRA CHAMBER OF HOUSING INDUSTRY AND ANOTHER VERSUS UNION OF INDIA AND OTHERS [2012 (1) TMI 98 - BOMBAY HIGH COURT] upholding the validity of the levy including the Explanation inserted in section 65 (105)(zzh) of Finance Act, 1994 by Finance Act, 2010, took precedence over that of any other High Court. HELD THAT:- It cannot but be noticed that the dispute in re Maharashtra Chamber of Housing Industries arose from the incorporation of a legal fiction to distinguish rendering of service from supply of goods in a composite transaction the taxability of which was, itself, not denied. In re Suresh Kumar Bansal, the approval accorded to the legal fiction by Hon'ble High Court of Bombay was not discarded but its implementability was discarded in the absence of a mechanism, in the statute, for isolating the value of services in a composite transaction. Hence there is no bar on taxation of such composite transaction. The dispute before the Hon'ble High Court of Delhi was on the inclusion of the tax in the amount charged in the invoice. It was not an appeal against rejection of a refund claim. While specific directions were issued on the handling of tax deposited, if any, the consideration of claim for refund under section 11B of Central Excise Act, was not a part of the document - Their applicability to the scheme of the negative list as well as the eligibility for refund has not been decided upon in the impugned order especially as the claim is not a consequential relief ordered by the Hon'ble High Court but needs examination in the context of section 11B of Central Excise Act, 1944. The claim for refund is restored for consideration afresh by the original authority to ascertain the eligibility of appellant on the extent to which taxability under the ‘negative list regime’ is impacted - appeal allowed by way of remand.
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