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M/s National Building Construction Corporation Ltd. Versus Commissioner of Service Tax

2015 (5) TMI 454 - CESTAT NEW DELHI

Construction of residential complex - works contract services - Denial of refund claim - Unjust enrichment - Held that:- If the activity of the assessee is outside the purview of the taxable service qua the definition of the taxable 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 .....

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he doctrine of unjust enrichment kicks in and a refund claim would not be admissible nor can Revenue retain such amount. Even if there be unjust enrichment, the un- authorised tax remitted by an assessee or collected by the Government cannot be retained but must be credited to the Consumer Welfare Fund.

Despite a series of correspondence between the assessee and Revenue officers, there is no material which has come on record to infer that the burden of service tax was not passed on b .....

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he assessees appeal, preferred against the primary adjudication order dated 07.03.2013, passed by the Deputy Commissioner, Service tax Division-I, New Delhi. 2. Relevant facts may be 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 pa .....

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of Finance vide the letter dated 24.05.2010 clarified that the activity of construction of residential complexes by the assessee , being intended for personal use of employees / Ministers of the Government of India, was not a taxable service. 3. Within a month of the Government clarification dated 24.05.2010, on 21.06.2010 the assessee presented its claim for refund of ₹ 30 ,06,796 /, being the service tax and interest earlier remitted by it on a misconception that it was liable to servic .....

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- was presented beyond the period of limitation specified in Section 11B of the Central Excise Act, 1944; and rejected refund in respect of the balance amount of Rs . 12,74,147/- as well, on several grounds including irrelevant grounds such as that the assessee was a public sector undertaking managed by the highly qualified officials who are presumed to know the legal position and on the further ground that the assessee failed to submit proof of not having passed on the burden of service tax to .....

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(A) vs. KVR Construction - 2012 (26) STR 195 ( Kar .) and directed that the assessee's claim for refund of ₹ 17 ,62,649 /- be considered by the primary Authority after verifying the relevant documents, to ascertain that the burden of service tax was not passed on and element of unjust enrichment was inapplicable to deny refund. In so far as the refund to the other extent of Rs . 12,74,147/- is concerned, the appellate Authority fell into the same error as the primary authority, namely .....

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ia in its letter dated 24.05.2010 (the vitality of which was not disputed either by primary or Appellate authorities or before us by the Id. AR), the appellant is not liable to service tax since it had not provided any taxable service in providing construction services at the two locations for constructions of housing for accommodation of Hon'ble Ministers or other Government officials, since the activity falls outside the purview of the definition of commercial or industrial construction se .....

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d 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 passing of the burden, the doctrine of unjust enrichment kicks .....

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plicable to service tax under Section 83 of the Finance Act, 1994. The synergy of Sections 11B , 12A and 12B of the Central Excise Act. 1944, read in the light of Section 83 of the Finance Act, 1994 require an applicant for refund of service tax to establish on the basis of some probative material that the burden of this indirect tax has not been passed on to others. 9. On the basis of the material on record, despite a series of correspondence between the assessee and Revenue officers, there is .....

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