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Muthoot Builders Versus Commissioner of Central Excise, Customs and Service Tax, Trivandrum

2017 (10) TMI 808 - CESTAT BANGALORE

Refund claim - Benefit of Notification 108/02/2009 dated 29.01.2009 - unjust enrichment - Held that: - the appellants are not entitled to the benefit of exclusion provided under Notification 108/02/2009 dated 29.01.2009 - the appellants have failed to bring on record any document which shows that they have constructed the flats on their land. - The refund claim is barred by unjust enrichment as the appellant has not been able to prove that the service tax has not been passed on to the ultima .....

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resent case are that the appellant is a registered provider of taxable service of Construction of Residential Complex and Works Contract Service under the Finance Act 1994. Appellant had undertaken the construction of two projects i.e. Muthoot Blue Mount Apartments and Muthoot Green Valley Mist during the period 04/2008 to 12/2008 on the land owned by the appellant and sold the apartments to ultimate buyers. The said activity was not a taxable service but self service as declared under Circular .....

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ng the due process of law vide Order-in-Original dated 05.03.2010 the refund claim was rejected. Aggrieved by the said order, appellant filed appeal before the Commissioner who vide the impugned order has rejected the appeal of the appellant. Hence the present appeal. 2. Heard both the parties and perused the records. 3. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the law and the evidence. He furthe .....

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d that in the grounds of appeal, the appellant has stated that they have raised construction on the land owned by them and they will produce the documents evidencing ownership over the land where they have constructed apartments but till today they have not been able to produce documents of ownership of land where the construction was raised. He further submitted that the appellants are not entitled for the exclusion provided by Circular No.108/02/2009 dated 29.01.2009. He also submitted that th .....

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are not entitled to the benefit of exclusion provided under Notification 108/02/2009 dated 29.01.2009. Further I also find that the appellants have failed to bring on record any document which shows that they have constructed the flats on their land. In this regard, it is pertinent to reproduce the findings of the Commissioner (Appeals) which is recorded in para 10 (vi): 10 (vi) Regarding the orders-in-original 97/ST/2009 (Refund) and 100/ST/2009 (Refund) both dated 05.03.2010, the refund claim .....

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