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M/s Sarthak Constructions Versus CCE & ST, Indore

2016 (1) TMI 822 - CESTAT NEW DELHI

Refund - unjust enrichment - service tax was paid wrongly - appellant contended that CBEC Circular No. 108/02/2009-ST dated 29.1.2009 clarified that the builders/ promoters are not liable to pay service tax under the category of construction of complex service defined under Section 65(105) - Held that:- Commissioner (Appeals) has held that the appellant was not promoter/builder of residential complex only on the ground that the appellant made payment of service tax under No. 00440290 which is ap .....

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ssertion of the appellant that it was promoter/builder of residential complex.

It is evident that the amount of service tax of which refund was sought was indeed not payable by the appellant. As regards the issue of unjust enrichment, we find that the Commissioner (Appeals) has recorded cogent finding regarding the failure of the appellant to discharge the onus that the burden of service tax was not passed on to others. The CA certificate submitted by the appellant to support of its .....

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discharge of its burden to demonstrate that the burden of impugned service tax was not passed on to others. - Decided partly in favor of assessee. - Appeal No. ST/570/2009-CU(DB) - Final Order No. 50068/2016 - Dated:- 1-1-2016 - MR. G. RAGHURAM, PRESIDENT AND MR. R.K. SINGH, MEMBER (TECHNICAL) For the Petitioner : Shri Krishan Garg, C.A. For the Respondent : Shri K. Poddar, D.R. ORDER PER R.K. SINGH: Appeal is filed against order-in-appeal dated 26.3.2009 which upheld the order in original date .....

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s/ promoters are not liable to pay service tax under the category of construction of complex service defined under Section 65(105). It also cited the CBEC Circular No. 332/35/2006-TRU dated 1.8.2006 and Master Circular No. 96/7/2007-ST dated 23.8.2007. It also added that it has obtained a proper CA certificate and can establish that it did not pass on the burden of service tax to others. 3. The ld. DR, on the other hand, stated that presumption of unjust enrichment is required to be rebutted whi .....

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We find that the CBEC vide Circular No. 332/35/2006-TRU dated 1.8.2006 clarified as under : Sr. No. Issue Legal Position 1. Is service tax applicable on Builder, Promoter or Developer who builds a residential complex with the services of his own staff and employing direct labour or petty labour contractors whose total bill does not increase 4.0 lacs in one P/Y? In a case where the builder, promoter or developer builds a residential complex, having more than 12 residential units, by engaging a co .....

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cases in the absence of service provider and service recipient relation. Further, CBEC circular No. 108/02/2009-ST dated 29.1.2009 reaffirmed the same view and observed as under : 3. The matter has been examined by the Board. Generally, the initial agreement between the promoters / builders / developers and the ultimate owner is in the nature of agreement to sell . Such a case, as per the provisions of the Transfer of Property Act, does not by itself create any interest in or charge on such prop .....

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and consequently would not attract service tax. Further, if the ultimate owner enters into a contract for construction of a residential complex with a promoter / builder / developer, who himself provides service of design, planning and construction; and after such construction the ultimate owner receives such property for his personal use, then such activity would not be subjected to service tax, because this case would fall under the exclusion provided in the definition of residential complex .....

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e and not under Code No. 00440334 which is applicable to residential complex service. We are unable to accept this ground as a valid ground for the said purpose in the absence of any other evidence to support the conclusion of the Commissioner (Appeals), that appellant was not promoter/builder of residential complex because payment of service tax under code number assigned to Industrial Construction Service cannot be a clinching evidence to discard the assertion of the appellant that it was prom .....

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