TMI Blog2019 (9) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... after such construction, the purchaser received such property for his personal use, then such activity would not be subjected to service tax because the exclusion provided in the definition of residential complex would apply to such a situation. Thus, it is very much clear that the exclusion clarified in the circular applies to the appellants - the service tax paid by them is under mistake of law. Time Limitation - HELD THAT:- Section 11B prescribes a period of one year for filing the refund claim. However, the Hon'ble jurisdictional High Court in the case of M/S. 3E INFOTECH VERSUS CUSTOMS, EXCISE SERVICE TAX APPELLATE TRIBUNAL, COMMISSIONER OF CENTRAL EXCISE (APPEALS-I) [ 2018 (7) TMI 276 - MADRAS HIGH COURT] had occasion to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). The levy of service tax on composite contracts prior to 1.6.2007 was struck down by the Hon'ble Apex Court. Circular No. 108/02/2009 dated 29.1.2009 was issued by the Board clarifying that the construction services undertaken by the builders on behalf of the flat owners which are for personal use are excluded from the definition of residential complex. Based on the circular, the appellant filed refund claim for the refund of the service tax paid by them to the service provider. Department issued Show Cause Notice proposing to reject the refund claims alleging that the appellants are not covered under the circular issued by the department and also alleging that the refund claims are time-barred. After due process of law, the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the refund. To support this argument, she relied upon the decision of the Hon'ble jurisdictional High Court in the case of 3E Infotech Vs. CESTAT, Chennai 2018 (19) GSTL 410 (Mad.). The decision of the Tribunal in the case of AP Enterprises Vs. Commissioner of Service Tax, Chennai 2019 (6) TMI 18 CESTAT Chennai was also relied by the ld. counsel for the appellants. 4. The ld. AR Shri L. Nandakumar supported the findings in the impugned order. He referred to section 11B of the Central Excise Act, 1944 which is made applicable to Finance Act, 1994 and argued that the limitation prescribed for filing a refund claim is applicable to the present cases. The appellants have paid the service tax in 2006 07 and the refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided in the definition of residential complex would apply to such a situation. Thus, it is very much clear that the exclusion clarified in the circular applies to the appellants. For this reason, I find that the service tax paid by them is under mistake of law. 5.2 It is also argued by the ld. counsel that later by the judgment in the case of Larsen Toubro Ltd. (supra), the Hon'ble Apex Court had held that prior to 1.6.2007, levy of service tax on composite contracts is unconstitutional. Thus, the service tax collected from the appellants prior to 1.6.2007, in all these appeals, therefore cannot sustain. 5.3 The second ground for rejection of refund claim is on the ground of limitation. Section11B prescribes a per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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