TMI Blog2022 (11) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... t - Appeal allowed. - Service Tax Appeal No. 51211 of 2022 (SM) - FINAL ORDER NO. 51068 / 2022 - Dated:- 10-11-2022 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Mr. Mohit Gohlyan, Chartered Accountant for the Appellant Shri Ishwar Charan, Authorised Representative for the Respondent ORDER Heard the parties. 2. The issue in this appeal is whether on the refund granted is unjust enrichment applies or not. 3. The brief facts of the case are as follows:- 3.1 The appellant is a builder /developer who constructs dwelling Unit/Apartment for sale. The appellant is registered with the department for providing service under the head construction of residential complex service, man power supply service and works contract ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RWA or society of flat owners once it is constituted. Revenue also issued SCN dated 24/12/2018 for denial of refund claim. Both the SCN were adjudicated by separate OIO, confirming the demand alongwith interest and rejecting the refund claim. In appeals preferred by the appellant, the commissioner (appeals) vide common OIA dated 25/11/2019 allowed both the appeals observing that no taxable service have been provided, nor the amount is collected is towards any taxable service, rather the amount is collected as a trustee from the buyers. 4. Consequent to allowing of the appeals, the appellant approached the department and vide OIO dated 11/05/2020, the Assistant Commissioner granted the refund for an amount of Rs. 3,21,354/- (2,69,685+51,6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved that burden of duty can also be passed by booking the amount as expenditure in profit and loss account, by dipping into its profits. Further observed that assessee has not shown amount as receiveable. Accordingly, it was held that the refund under dispute has not passed the test of unjust enrichment. 7. Being aggrieved appellant is before this Tribunal. Learned Counsel for the appellant urges that the Commissioner (Appeals) have erred in holding that the test of unjust enrichment has not been cleared. He further states that the assessee had two options, either to capitalise the amount of tax and interest deposited, and show it in the balance sheet as amount paid and refundable. Alternatively, they could debit the said amount to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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