TMI Blog2016 (7) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... essee, who purchased flats, are entitled to the refund - the appellant have filed the details of his customers, with the revenue in the adjudication of the refund proceedings. The assessee also mentioned that the customers are pressing for refund and some of them 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 ₹ 16,85,956/-. The Adjudicating Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in the facts of the assessee that they have constructed the flats on their own account and sold the flats. The refund claim was filed on 21/12/2006. Pursuant to receipt of the refund claim, defect memo was issued dated 19/02/2007. In response to the defect memo appellant removed defects on 11/09/2007. That further details were filed on 16/03/09, along with the original copy of TR-6 challans, as per the Order-in-Original dated 10/08/11. During the pendency of the adjudication of the refund application, the refund application after some processing was again returned back by the revenue on 20/04/09, with the observation that the TR-6 challans dated 31/03/2006 08/06/06, for ₹ 25 lakhs+4 lakhs pertains to deposit of service tax under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Repair and Maintenance Services, though the assessee is involved in construction of buildings requires proper verification and further the element, of unjust enrichment it appeared, have not been considered in proper perspective, vide Order-In-Appeal dated 03/01/13 the Id. Commissioner (appeals) was pleased to reject the appeal upholding the Order-in-original, observing that the issue of unjust enrichment has been considered properly and categorical finding is recorded for the same by the adjudicating authority. Further observed that quantum of refund have been properly verified and further the books of accounts of the appellant have been audited by a Chartered Accountant, with observation I find that the burden of service tax has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hdrawn on the ground that the said amount was collected by the assessee from the buyers of the flat) the appellant again filed the refund claim with the revenue in form on date 11/06/12 received in the revenue office on 22/06/12 for refund of ₹ 16,85,956/-, claim to have been wrongly paid by them. After issue of defect memo and some correspondence, show cause notice dated 02/11/12 was issued requiring the appellant to show cause as to why refund claim should not be rejected on the ground that they do not fulfill the conditions and for that the refund appears to be time barred as well as on the ground of unjust enrichment. The appellant appeared and contested the show cause notice stating therein that the customers of the appellant are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Tribunal. 5. Having considered the rival contentions, so far the appeal of revenue is concerned, I find that the grounds are the same which were before the Commissioner (appeals) and the same have been properly considered in the Order-in-Appeal. After going through the findings in the Order-in-Appeal, I hold that neither the doctrine of unjust enrichment is attracted with respect to the refund of ₹ 30,44,360/nor the issue of time bar is attracted. Further I hold that, as it has been clarified by the CBEC that service tax was not payable on the transactions of the appellant with respect to construction and sale of flats during the financial year 2006-07, the deposit of tax made by the assessee takes the character of deposit, and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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