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2016 (12) TMI 601 - CESTAT NEW DELHIRefund claim - commercial or industrial construction services - construction of complex services - unjust enrichment - time bar - Held that: - In the impugned order, the Commissioner (Appeals) has taken the view that the service rendered by the assessee is rightly classifiable under the category of works contract service, since the service rendered was in the nature of a composite contract involving supply of goods as well as rendering of service. We are in agreement with the findings of the Id. Commissioner (Appeals). This view finds support in the decision of the Hon'ble Supreme Court in the case of CCE vs. Larsen & Toubro Ltd, [2015 (8) TMI 749 - SUPREME COURT]. Since the disputed period is prior to the date of introduction of works contract services, no service tax will be payable by the assessee. Consequently, the refund claim is admissible on merits. Time bar - Held that: - The original adjudicating authority has taken the view that an amount of ₹ 3,26,770/- has been deposited by the assessee on 21.11.2005. The refund claim stands filed on 12.3.2007. Therefore, the claim will be hit by time bar as per Section 11B (i) of the Central Excise Act, 1944, since the period is beyond one year. Consequently, we uphold this portion of the order of the Commissioner (Appeals). Unjust enrichment - Held that: - the amount deposited is in the nature of service tax. Consequently, the refund will be governed by the provisions of Section 11B. Inasmuch as the assessee has not submitted any proof to the effect that the burden of tax has not been passed on to the customers, the refund, which otherwise merits sanction, will need to be credited to the Consumer Welfare Fund. Appeal disposed off - decided in favor of Revenue partly.
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