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TMI Blog2017 (3) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... im for refund of 37,61,105 in application dated 3rd October 2006. The original authority rejected the claim on the grounds that the circular had been misinterpreted as the taxability vested on the transaction between builder and contractor as well as the builder and buyer, that the presumption of having collected tax from the buyers operated to invoke the doctrine of 'unjust enrichment' enunciated in section 11B of Central Excise Act, 1944 made applicable to service tax in accordance with section 83 of Finance Act, 1994 and that the claim for Rs. 44,981 was barred by the limitation prescribed in section 11B of Central Excise Act, 1944. In appeal, Commissioner of Central Excise (Appeals) - IV, Mumbai Zone -I vide order-in-appeal no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been identifiable as a 'service provider' distinct from that of the 'contractor' covered in the clarification cited supra. On the contrary, he placed reliance on the said clarification and further circular no. 108/02/2009-ST dated 29th January 2009. Turning to the issue of unjust enrichment, the first appellate authority, having perused documentary evidence such as client ledger accounts and the bills raised on clients which did not include the tax component and the audited balance sheets which indicated the amount as receivable from the Government, did not consider it to invokable. Aggrieved by these two orders, Revenue is in appeal seeking restoration of findings of the original authority. 4. As the issues are identical, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstruction had actually started or during the progress of the construction activity or at the end or completion of the construction activity. Any advance, made by a prospective buyer, or deposit received by the petitioner-company, is against consideration of sale of the flat/building to such prospective buyer and not for the purpose of obtaining "service "from the petitioner-company.' 5. I find that the impugned order is clear in its exposition that the show cause notice was limited to the issue of 'time bar' and 'unjust enrichment' and thus foreclosing rejection on any other ground. The grounds of appeal fail to advert to this finding in the impugned order and, not having controverted it, cannot, in the absence of having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal fail to controvert the specific reasoning of the first appellate authority and preferred to stand by the suppositions and presumption articulated by the original authority thus '8(i) Under the constitutional provision under "article 246(1) read with Entry 97 of list I of the 7th SCH, Parliament is empowered to make law pertaining to service tax. The impugned provisions of the F.A., 1994 were made in the valid exercise of this power. In light of the above position, once the liability to pay service tax is fixed upon the assessee, they cannot disclaim the same on the basis of the plea that the same has not been shown separately in their bills/invoices raised. And in fact when the assessee has already and validly paid the service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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