TMI Blog2017 (3) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... alternative but to infer that the service tax amount has been recovered from their clients and embedded in the billing amount - refund claim allowed on account of unjust enrichment - appeal dismissed - decided against Revenue. - ST/85996 & 85997/2013 - A/86135-86136/17/SMB - Dated:- 4-11-2016 - Shri C.J. Mathew, Member (Technical) Appearance: Shri B.K. lyer, Superintendent (AR) for the appellant Shri Rajiv Luthia, Chartered Accountant for the respondents M/S Quick Builders Pvt. Ltd, in the business of developing apartment complexes and selling the units, had been paying tax on such transactions between April 2005 and June 2006 and, consequent upon clarification communicated in F. No. 332/35/2005-TRU dated 1 st August ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 2,30,214 was barred by the limitation provision in section 11B of Central Excise Act, 1944. In appeal, Commissioner of Central Excise (Appeals)-IV, Mumbai Zone- I vide order-in-appeal no. 160 dated 12th November 2012 allowed the refund except of ₹ 2,30,214 that was found to be barred by limitation of time. 3. The first appellate authority, agreeing with the lower authority on the portion held as barred by limitation of time, had allowed the refunds of ₹ 37,16,114 and ₹ 20,00,360 as the notice issued to the two entities had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es clear that the circular, dated August 1, 2006, aforementioned, is binding on the department and this circular makes it more than abundantly clear that when a builder, promoter or developer undertakes construction activity for its own self, then, in such cases, in the absence of relationship of service provider and service recipient , the question of providing taxable service to any person by any other person does not arise at all. In the present case too, the materials placed by the writ petitioners clearly show that the construction activities, which the petitioners have been undertaking, are in respect of the petitioners' own work and it is only the completed construction work, which is sold by the petitioner-company to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation, legitimacy, absorption and payout. Thus, it is only a claim that is admissible that is required to cross the hurdle of the claimant having absorbed the burden and, in the event of failure to do so, the Fund is the beneficiary. A claim that is held as ineligible remains in the Consolidated Fund of India by rejection; a claim that has been decided as having failed the test of unjust enrichment cannot be retained in the Consolidated Fund of India. With 'time bar' and unjust enrichment' as the sole ground for refusal of refund claim, the tax has to be presumed to have been collected without authority of law and if not returned, must be credited to the Fund. 7. The impugned order has put the grounds to the test and, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in the case of MAFATLAS INDUSTRIES LTD. AHMEDABAD VS. UNION OF INDIA (1997) (89) ELT 247 (SC) has pointed out that just because duty is not separately shown in the invoice Price, it does not follow that the manufacturer is not passing on the duty', nor it follows their from that the manufacturer is absorbing the duty himself 8(iii) The mere fact that the service tax amount have not been in the clients ledger account, and that the service tax amount paid has been accounted as an expenses in profit and loss account cannot override the factual position that whatever billing has been made is inclusive of service tax which is not shown separately. So there is no alternative but to infer that the service tax amount has be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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