TMI Blog2010 (10) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... er Adjudicating Authority and hence the same needs to be verified before sanctioning - Principles of Natural Justice should be followed while sanctioning the claim - Appeal is disposed of - 164/2010(P-ST) - - - Dated:- 20-10-2010 - Shri Arun Tandon,JJ REPRESENTED BY : Shri Joseph Prabakar, Advocate, for the Appellant. Shri R. Jayasankar, Superintendent, for the Respondent. [Order]. - This is an appeal filed by M/s. Aban Power Company Limited, 25, G.N. Chetty Road, T. Nagar, Chennai - 600 017 (hereinafter referred to as appellant) against the Order-in-Original No. 10/2009(R) dated 31-3-2009 passed by the Assistant Commissioner of Central Excise, Villupuram Division, Pondicherry Commissionerate. This appeal has been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the layout, and the construction of such complex was intended for personal use as residence by such person and that personal use included permitting the complex for use as residence by another person on rent or without consideration; that since the construction of the said buildings was for personal use, it did not attract Service Tax; that M/s. Senthil Construction had paid Service Tax on the said construction by mistake of law and had collected the same from them; that they had borne the service tax themselves and had not passed on the same to any other person and hence applied for the refund. 4. The Lower Adjudicating Authority felt that the appellants are not eligible for the refund claim for the following reasons : 1. Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides for exclusion of construction for personal use is as follows :- residential complex means any complex comprising of - (i) a building or buildings, having more than twelve residential units; (ii) a common area; and (iii) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system, located within a premises and the layout of such premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplex which is constructed by a person directly engaging any other person for designing/planning/construction and is intended for personal use as residence by such person. The definition also explains that personal use includes promoting use of such property as residence by another person on rent or even without consideration. 4. The appellant also submitted that M/s. Senthil Construction had paid Service Tax on the said construction by mistake of law and had collected the same from them; that they had borne the service tax themselves and had not passed on the same to any other person and hence applied for the refund. 6. Personal hearing was held and Shri Joseph Prabakar, Advocate, appeared on behalf of the appellant and reiterated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal use includes permitting the complex for use as residence by another person on rent or without consideration; (b) residential unit means a single house or a single apartment intended for use as a place of residence; 9. It is seen from the above definition that there is an exclusion clause which reads as follows :- .......but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. 10. It is not Department s case that the appellant had not directly engaged M/s. Senthil Construction for the construction of the complex or such complex is not intended for pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty is governed by provisions of Section 11B of the Central Excise Act, 1944. Even refunds in the case of tax recovered without authority of law has to be filed under the provisions of Section 11B of the Act as held by Rajasthan High Court in Vividh Marbles Pvt. Ltd. v. Asst. Commissioner - 2008 (223) E.L.T. 576 Rajasthan High Court. The relevant portion of the order is reproduced as under : Unauthorised recovery - Supreme Court held that levy of duty is ultra vires on cutting of marble blocks into marble slabs and tiles - No authority under which tax can be levied and collected on such activity and both parties were labouring under mistake of law - Demand, interest and penalty set aside - Amount already recovered from the assessee subj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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