9911796707
TMI Blog2015 (5) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... e noticed. The assessee is a registrant under provisions of the Finance Act, 1994 for providing taxable services such as construction of residential complex and works contract services. The assessee is a Government of India entity working under the Ministry of Urban Development executing works for re-development of part of Netaji Nagar and East Moti Bagh , New Delhi, by construction of multi-storied flats for residential accommodation of Hon'ble Ministers and Government officers. It remitted service tax of Rs . 29,86,948/- plus an interest component of Rs . 19,848/-. on the assumption that it had provided taxable services and incurred service tax liability thereon. The assessee represented to the Government for a clarification whether i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmit proof of not having passed on the burden of service tax to others and thus the claim was barred by the principle of unjust enrichment. 6. Aggrieved, the assessee preferred an appeal which was partly allowed by the Id. appellate Commissioner. The appellate Commissioner reversed the conclusion by the primary authority and ruled that refund claim to the extent of Rs. 17 ,32,649 /- was not barred by limitation and was liable to be refunded. The appellate Commissioner placed reliance for this conclusion on the judgment of the Karnataka High Court in CCE (A) vs. KVR Construction - 2012 (26) STR 195 ( Kar .) and directed that the assessee's claim for refund of Rs. 17 ,62,649 /- be considered by the primary Authority after verifying the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e service whether the sub-contractors had provided any taxable service and if so had remitted service tax, is a wholly irrelevant issue in the adjudication process. On whether assessee provided a taxable service, Government clarification dated 24.05.2010 is conclusive and the answer is that the appellant had not provided a taxable service. If that be so, the assessee is entitled to refund subject to fulfilment of the statutory requirement under Section 11B read with Section 12A and 12B of the Central Excise Act, 1944. On a conjoint reading of these provisions, the legislative trajectory is clear, that a claimant for refund of tax is required to establish that the burden of service tax (an indirect tax) was not passed on. If there is a passi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and remit the matter to the primary Authority with liberty granted to the appellant to furnish before the primary Authority, within thirty days from the date of receipt of this order, all such evidence/ material / documents which may include a certificate by a Chartered Accountant, bills, invoices, balance sheets or profit and loss account or any other document /instrument having a probative value, to persuade the primary authority to a conclusion that the assessee has not passed on the burden of service tax and is therefore entitled to the refund of service tax and the interest component of Rs . 30,06,796/-. In the event the assessee fails to provide the information within the time stipulated in this order or in the event the material fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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