9911796707
TMI Blog2016 (7) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... es P. Ltd. are in the business of Construction of Residential Flats or units and are registered with the Service Tax Department under the category "Construction of Commercial and Industrial Structures" and under the category "Construction of Complex Service". During the period 200607 the appellant constructed and sold some flats to various buyers. On being so advised by the revenue that they are liable to pay service tax on the flats constructed and sold, the appellant deposited service tax amounting to Rs. 47,30,316/- vide 7 TR-6 challans. Subsequently, in view of CBEC Circular No. 332/35/2006-TRU dated 01/08/2006 the appellant assessee filed refund claim as it was clarified by the circular that service tax was not payable in the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as borne the burden of taxes, which is not actually payable by him, is entitled for the refund from the Department and has full locus standi to seek the refund. Being aggrieved the revenue preferred an appeal before Commissioner (appeals) on the ground that the adjudicating authority have erred in relying upon the affidavit of the assessee in believing realization of Rs. 16,85,956/- from the customers. Further the adjudication order reveals that no effort have been made to verify the deposit of this amount by the party in Govt. Exchequer and whether the amount in question Rs. 30,44,360/- had been received by the party from their customers or not. For the deposit of service tax under the Head-Repair and Maintenance Services, though the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per in view of the rulings of the tribunal, High Court and as held in the case of Universal Cylinders v. CCE 2004 (178) ELT-898,= 2004 (5) TMI 218 - CESTAT, NEW DELHI has held that Refund claim was returned as there were no supporting documents and the same were submitted later with the required documents, held that the date of submission will be the original date of submission. Being further aggrieved the Revenue is in appeal before this Tribunal on similar grounds which were taken in the first appeal before the Commissioner (appeals). The assessee is in cross objections against the appeal of the revenue. 4. After withdrawing part of the refund claim of the 16,85,956/- (which was withdrawn on the ground that the said amount was collected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 0-1-A dated 21/08/14, the appeal was rejected, observing that refund was filed consequent upon issue of board circular dated 01/08/2006, with the revenue on 21/12/2006 and further on discussion with the Department, the appellant withdraw the refund claim and as such it is admitted fact that the amount of the 16,85,956/- have been collected by the appellant assessee from their customers. The refund claim was rightly rejected on the ground of unjust enrichment. Further as regards the issue of time barred, the learned Commissioner observed that in absence of documentary evidences before him, the findings could not be examined. Being aggrieved the appellant assessee is in appeal before this Tribunal. 5. Having considered the rival contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem have also approached various judicial forums, including the Consumer forum. In view of this matter, I set aside the impugned order and remand the issue back to the adjudicating authority, who shall examine the whereabouts of the person's who deposited the service tax to the appellant, for the purchase of flats, and after such verification having been carried out, shall grant refund to the buyers of the flats out of the said amount of Rs. 16,85,956/-. The appellant is also directed to furnish the names, parentage and proper addresses of the buyers of the flats, with the details of the amount collected from them on account of service tax and the deposit of tax with the revenue. The appellant shall also extend any further co-operation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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