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2015 (11) TMI 563 - CESTAT MUMBAI

2015 (11) TMI 563 - CESTAT MUMBAI - TMI - Commercial or industrial construction service - Refund claim - Unjust enrichment - Held that:- Board has clarified as early as on 1.8.2006 that no service ax is chargeable under the circumstances. The appellant was aware of the said circular. In 2007, the said circular was only reiterated. Further, it is noticed that majority of the service tax has been collected by the appellant from their customer and only few customers have disputed. This would also i .....

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also quoted the Hon’ble Madras High Courts decision in the case of Saralee Household & Bodycare India (P) Ltd [2007 (6) TMI 55 - HIGH COURT, MADRAS ]. In the present case barring an amount of ₹ 3 lakhs, the appellant themselves were admitting that the remaining amount has been recovered from their customers. Even the amount of ₹ 3 lakhs which according to them has been paid by from their own resources cannot be considered for refund as the doctrine of unjust enrichment would be appl .....

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ustrial construction service and construction of complex service. It appears that the appellant themselves were not doing the construction work or getting it done from the contractors. The appellant was paying the service tax despite the CBEC circular dated 1.8.2006 clarifying that the contractor who undertakes the construction work is required to pay the service tax and not the developer. The appellant was not only paying service tax but were also recovering from their customers. In August 2007 .....

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ount was paid by them their own account as certain customers refused to pay the service tax. The refund claims of the appellant were rejected by the original and first appellate authority on the consideration of limitation as also unjust enrichment. 2. Learned counsel for the appellant submits that the Hon ble High Court of Karnataka in the case of KVR Constructions vs. CCE, Bangalore reported in 2010-TIOL-68-HC-KAR-ST, has allowed refund of the amount in similar circumstances. The learned couns .....

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eported in 2015-TIOL-48-SC-CX. The learned counsel also submitted that the doctrine of unjust enrichment is not applicable as held by the Hon ble Madras High Court in the case of CCE, Chennai-III vs. Saralee Household & Bodycare India (P) Ltd. reported in 2007 (216) ELT 685 (Mad.). 3. Learned AR reiterated the order of the Commissioner (Appeals). 4. I have considered the submissions made by both the sides. It is not disputed that the Board has clarified as early as on 1.8.2006 that no servic .....

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