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TMI Blog2019 (4) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... were not liable to payment of service tax under the said category as per the CBEC Circular No. 108/02/2009-ST dated 29.01.2009. 2. The Department was of the view that the Circular does not apply to the appellant and that the service tax has been correctly paid by them. After due process of law, the refund claim was rejected by the Refund Sanctioning Authority. In appeal, the Commissioner (Appeals) upheld the same. Hence, this appeal. 3.1.1 On behalf of the appellant, Ld. Consultant Shri. S. Ramachandran appeared and argued the matter. He submitted that based on certain investigations done by the Department, it was pointed out by the Department that the appellants had indulged in the construction of 13 residential units and therefore, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supply of materials and provision of labour, the Construction of Complex Services undertaken by the appellant are in the nature of composite contracts. Therefore, even though it is argued by the Department that the Circulars are not applicable, the decision in the case of M/s. Real Value Promoters Pvt. Ltd. (supra) would squarely apply to the present case. Therefore, the appellant is eligible for the refund. 4.1 Ld. AR Shri. S. Govindarajan appearing on behalf of the respondent supported the findings in the impugned Order. He argued that the appellant had provided Construction of Residential Complex Services. They are not covered under the Circulars and therefore, the authorities below have rightly rejected the refund. 4.2 It is further p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009-ST dated 29.01.2009. (b) For the period after 01/07/2010 : Construction service provided by the builder/developer is taxable in case any part of the payment/development rights of the land was received by the builder/developer before the issuance of completion certificate and the service tax would be required to be paid by builder/developers even for the flats given to the land owner. (b) Valuation * Value of flat given to landowner shall be equal to the value of similar flats charged by the builder/developer from the other buyers. * In case of change in price, value shall be value of similar flats as are sold nearer to the date on which land is being made available in construction. 7.1 It is not disputed that the appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rkings/calculations given by the Officers of the Department. That such workings/calculations are after giving the appellant the benefit of cum-tax. This has to be verified. 8.2 For the purpose of verifying as to whether the demand is hit by unjust enrichment, we are of the opinion that the issue requires to be remanded to the adjudicating authority, who shall verify the same. We make it clear that the question as to whether the services are subject to levy of service tax is covered by the decision of the Tribunal in the case of M/s. Real Value Promoters Pvt. Ltd. (supra). In the remand proceedings, the adjudicating authority need only look into the issue of unjust enrichment. Needless to say, in case the burden of tax has not been passed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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