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Commissioner of Central Excise, Lucknow Versus Eldeco Housing & Industries P. Ltd.

2016 (7) TMI 52 - CESTAT ALLAHABAD

Refund of service tax paid under the Construction of Complex Service which was not payable - unjust enrichment - refund to be made the appellant or to the buyers of the flats - The appellant appeared and contested the show cause notice stating therein that the customers of the appellant are demanding refund of the service tax amount paid by them, in view of the clarification by the board that service tax was not payable and accordingly, the refund may be granted directly to the buyers of the fla .....

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he 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 Authority shall issue the refund cheques in favour of the respective buyers of the flats, to which the appellant assessee shall not be entitled to make any obje .....

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ce. 2. Heard the parties. 3. The brief facts are that the Eldeco Housing & Industries 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 the .....

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nt 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 3 .....

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for the amount of ₹ 30,44,360/- after examining the provisions of unjust enrichment and considering the Master circular dated 23/08/2007, read with circular number 332/35/2006-TRU and considering the ruling of the Apex Court in the case of IDL Chemicals v/s Union of India 1996 (86) ELT-182,= 1996 (7) TMI 143 - SUPREME COURT OF INDIA in which Apex Court has held that the person who has borne the burden of taxes, which is not actually payable by him, is entitled for the refund from the Depar .....

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en received by the party from their customers or not. For the deposit of service tax under the Head-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 en .....

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ide, which indicates that the amount had not been received by the party from their customers." So far the issue of deposit of tax under wrong head, it was observed that the adjudicating authority considered the issue and decided the same in favour of the assessee, in view of the ruling of the Honourable Supreme Court in the case of IDL Chemicals (supra). So far the issue of time barred is concerned the learned Commissioner held that the refund is within the permissible period of one year fr .....

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e 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 by the assessee from the buyers of the flat) the appellant again filed the refund claim with the r .....

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ared and contested the show cause notice stating therein that the customers of the appellant are demanding refund of the service tax amount paid by them, in view of the clarification by the board that service tax was not payable and accordingly, the refund may be granted directly to the buyers of the flats. It was also mentioned that some of the buyers have moved before the Consumer Courts. The said claim was adjudicated vide 0-1-0 dated 03/01/13, rejecting the refund claim on the ground that th .....

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sue 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, t .....

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#8377; 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 is not tax. The doctrine of unjust enrichment is attracted only in the case of deposit of tax. Further from the perusal of documents, and the orders of the C .....

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