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2012 (4) TMI 427 - CESTAT, NEW DELHIWhether the respondents were doing any service for the prospective buyers or were doing the construction activity for themselves - Service tax liability confirmed against the Respondents but set aside by the Commissioner (Appeal) – Held that:- The period involved was prior to enactment of Finance Act, 2010 - the initial agreement between the promoters/builders/ developers and the ultimate owner is in the nature of 'agreement to sell' and the property remains under the ownership of the seller - any service provided by such seller in connection with the construction of residential complex till the execution of final sale deed would be in the nature of 'self-service' and consequently would not attract service tax - decided in the case of Commissioner of Service Tax Versus Shrinandnagar-IV Co. Op. Housing Society Ltd (2011 -TMI - 207838 - GUJARAT HIGH COURT) - against Revenue. Claim refund of service tax paid - Commissioner (Appeal) allowed the appeals as was no unjust enrichment involved – Held that:- No basis on the Commissioner (Appeal) point that the principle of unjust enrichment was not raised in the SCN and hence it cannot be raised in the adjudication order - No clear evidence is produced to depict that the prices were agreed to with the buyers before they started paying service tax and the price remained the same without any increase on other pretexts till the delivery of the flat to the prospective buyers - that the Respondents were not given opportunity by the adjudicating authority to substantiate their claim that principle of unjust enrichment will not apply - does not propose to decide the issue without any finding by either of the lower authority – remand the matter to adjudicating authority for examination of all evidences produced by the Respondents to prove their claim
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