TMI Blog2023 (3) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... pertaining to a single residential unit otherwise than as a part of a residential complex have been exempted - the Commissioner (Appeals) was not justified in holding that the appellant would not be entitled to the benefit of the Exemption Notification. The Commissioner (Appeals) was also not justified in holding that the refund was hit by the principles of unjust enrichment. As per the work orders, service tax was to be borne by the appellant and the Commissioner (Appeals) has also found, as a fact, that the contract awarded by the Housing Board to the appellant mentions that service tax shall be borne by the contractor. The Allahabad High Court in COMMISSIONER OF CUSTOMS CENTRAL EXCISE SERVICE TAX VERSUS M/S. INDIAN FARMERS FERTILIZERS COOPERATIVE LTD. [ 2014 (7) TMI 891 - ALLAHABAD HIGH COURT ] held that a refund can be claimed by a person who has borne the incidence of tax. Even in accordance with the Exemption Notification dated June 20, 2012, 50% of the tax to be deposited by the Housing Board under the reverse charge mechanism was deducted by the Housing Board from the amount payable to the appellant. Appeal allowed. - Service Tax Appeal No. 50766-50768 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Board was deducted from the amount payable to the appellant by the Housing Board. The appellant further claims that construction of the individual/independent residential houses was not subject to levy of service tax prior to July 01, 2012 and even after July 01, 2012 it was exempted under the Exemption Notification dated June 20, 2012. 5. The Commissioner (Appeals) denied the refund of service tax for the reason that the appellant cannot claim benefit of the Exemption Notification dated June 20, 2012 for the period after July 01, 2012. The Commissioner (Appeals) has also rejected the refund claim on the ground of unjust enrichment. 6. Shri O.P. Agarwal, learned Chartered Accountant appearing for the appellant submitted that the appellant is entitled to exemption under the Notification dated June 20, 2012 since individual/independent houses were constructed by the appellant. In support of this contention, learned Chartered Accountant has placed reliance upon the decision of the Division Bench of the Tribunal in Beriwal Constructions Co. vs Commissioner of Central Excise Service Tax-II, Agra [2017(5) GSTL 198 (Tri-All.)]. Learned Chartered Accountant also submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an authority under any law for the time being in force, but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. Explanation :- For the removal of doubts, it is hereby declared that for the purposes of the clause, (a) Personal use includes permitting the complex for the use a residence by another person on rent or without consideration; (b) Residential unit means a single house or a single apartment intended for use as a place of residence; 13. It is seen that a residential complex has been defined to mean any complex comprising of a building or buildings, having more than twelve residential units; and a residential unit has also been defined in Explanation (b) to mean a single house or a single apartment intended for use as a place of residence. 14. The definition of a residential complex leaves no manner of doubt that it would be a complex comprising of a building or buildings, having more than twelve residential units. In other words a complex may have a building having more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1994 as amended. According to this Explanation, construction of a new residential complex or a part thereof stands included within the scope of works contract . But, here again, the definition of residential complex given under section 65(91a) of the Act has to be looked at. By no stretch of imagination can it be said that individual residential units were intended to be considered as a residential complex or a part thereof. (emphasis supplied) 17. It needs to be noticed that the Bench also examined whether construction of a new residential complex or a part thereof would be covered within the meaning of a works contract , after 1 June, 2007 and held that in this case also the definition of a new residential complex given in section 65(91a) of the Act was required to be looked. The Civil Appeal filed by the Department to assail the aforesaid order of the Tribunal was dismissed by the Supreme Court on 7 July, 2009. 18. This is what was also observed by a Division Bench of the Tribunal in M/s Lakhlan Qureshi Construction Company vs Commissioner of Central Excise and Service Tax, Jaipur- I [Service Tax Appeal No. 55701/2014 decided on 14.10.2019]. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the financial year 2004-05 to 2006-07. He submitted that the activity of the respondent is liable for Service Tax under the services of Construction of Complex Services as defined under Section 65 of the Finance Act, 1994. It is also not disputed by the learned counsel for the appellant that the Service tax has been paid by the M.P Housing Board. The sole contention of the learned counsel for the appellant is that the respondent has built more than 12 residential units in a complex and, therefore, they are liable to pay Service tax. In the case of Macro Marvel Projects Ltd. (supra), this question has been considered by the Tribunal and the learned Tribunal very categorically stated that as per Clause (91a) of Section 65 of the Act, that construction of residential complex having not more than 12 residential units is not to be taxed under the Finance Act, 1994. For the levy, it should be a residential complex comprising more than 12 residential houses. Admittedly in the present case, the respondent constructed 15 independent HIG Houses, each being a residential unit. In view of the aforesaid, we are of the view that the learned Tribunal has not committed any le ..... 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