TMI Blog2020 (12) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for establishment of tax liability, need not necessarily be made a ground in the show-cause notice since everyone is presumed to know the law/rules governing the affair of the State. Unjust Enrichment - HELD THAT:- Customers were not charged Service Tax for Bandra unit. Appellant agreed to discharge the tax liability during investigation - HELD THAT:- This issue which is raised by the learned respondent-department is hit by Rule 10 of the CESTAT Procedure Rule, 1982 as has not been argued during the hearing of the petition. Therefore, the only aspect that is required to be dealt in this appeal is the establishment of construction of less than 12 units by the appellant in the disputed complex. Thus, it can be inferred that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplex classifiable under Section 65 (91a) of the Finance Act, 1994 but was issued with deficiency memo and show-cause notice on several grounds that were ultimately adjudicated by the Assistant Commissioner of Service Tax, Division IV, Mumbai-II, resulting in rejection of its refund claim vide Order-in- Original No. ST-II/Div.IV/164-R/2012 dated 30.11.2012. In the appeal before the Commissioner (Appeals), the said order was confirmed on the ground that appellant failed to establish construction of less than 12 residential units through documentary evidence that gave it exemption from such payment but not on the grounds raised in the show-cause notice. Hence the appeal. 3. In the memo of appeal and during the course of hearing learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orally and through his subsequently filed written submissions that ground plan submitted by the appellant was incomplete and admission of appellant in the refund claim application that he received Service Tax in advance from prospective customers would disentitle the appellant to get the claimed refund besides the fact that in view of CESTAT judgement in the case of Nukay Nufit Nakshtra Vs. Commissioner of Central Excise, Pune-III reported in 2015-TIOL-607-CESTAT-MUM, that pending enquiry if the appellant discharged the service tax liability, no refund is admissible. He also supported the findings of the Commissioner (Appeals) that documents produced by the appellant were inadequate to establish the number of units that comprised the resid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, is also hit by Rule 10 of the CESTAT Procedure Rule, 1982 as has not been argued during the hearing of the petition. Therefore, the only aspect that is required to be dealt in this appeal is the establishment of construction of less than 12 units by the appellant in the disputed complex. On this aspect, it is required to reproduce relevant portion of the order passed by the Commissioner (Appeals) at para 8 of the Order-in-Appeal which reads: The appellants have produced voluminous documents in this regard viz. agreement copy of customer, title certificate, Commencement certificate, Occupation certificate, copy of letter towards submission under protest and paid challan copy, Service Tax returns, Architect certificate and BMC approv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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