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TMI Blog2023 (7) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... d and the amount of refund rejected are contained in the following chart: S. No. Appeal No. Period of dispute Amount of Refund 1. ST/51458/2018 2014-15 ST 743963/- Interest 16589/- 2. ST/51484/2018 2012-13 & 2013-14 ST 116336/- 3. ST/51485/2018 2012-13 & 2013-14 ST 1160560/- 4. ST/51486/2018 2013-14 ST 403850/- 4. The refunds claimed by the appellant were rejected for the reason that service tax was payable to prior 01.07.2012 and had not been exempted w.e.f. 01.07.2012 and that they were also hit by unjust enrichment. Except Service Tax Appeal No. 51458 of 2018, it was also held that the refund was barred by limitation. 5. The appellant claims that it had constructed individual/independent residential houses (stand alone house) as per the work orders given by the Rajasthan House Board [the Board] ; the Residential Engineer of the Board certified that the houses that were constructed were individual residences having independent approach and entry with separate electricity and water connection; and the appellant had deposited service tax on such constructed houses by mistake and the Board had also deposited 50% of service tax on reverse charge mechanism in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. The submissions advanced by learned counsel for the appellant and the learned authorized representative appearing for the Department have been considered. 11. To appreciate the submissions, it would be useful to first examine the position regarding levy of service tax as it existed prior to 01.07.2012. 12. The appellant had constructed residential houses for the Housing Board. Section 65(105)(zzzh) of the Finance Act, 1994 [the Finance Act] provides that 'taxable service' means "any services provided or to be provided to any person, by any other person in relation to construction of complex". 13. 'Construction of complex' has been defined in section 65(30a) of the Finance Act as follows: "Section 65(30a) - "Construction of Complex" "Construction of Complex" means (a) Construction of a new residential complex or a part thereof; or (b) Completion and finishing services in relation to residential complex such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic application or fittings and other similar services; or (c) Repair, alterat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board will not be covered by the definition of a "residential complex" and, therefore, would not be taxable as the contract executed with the Housing Board was not in relation to construction of a complex. 18. This submission, for the reasons stated above, deserves to be accepted. In this connection reliance can be placed on a Division Bench judgment of the Tribunal in Macro Marvel Projects Ltd. vs. Commissioner of Service Tax, Chennai [2008 (12) STR 603 (Tri.-Chennai)] wherein the demand of service tax was for the period 16 June, 2005 to November, 2005 under 'construction of complex' service under section 65(30a) of the Act. The Bench examined the scope of 'construction of complex' and the meaning of a 'residential complex' under section 65(91a) of the Finance Act and the observations are as follows: "It is abundantly clear from the above provisions that construction of residential complex having not more than 12 residential units is not sought to be taxed under the Finance Act, 1994. For the levy, it should be a residential complex comprising more than 12 residential units. Admittedly, in the present case, the appellants constructed individual residential houses, each being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly, 2012 and two or more units after 1 July, 2012 is not sought to be taxed under the provisions of the Finance Act/Service Tax provisions. For the levy, it should be registered complex comprising more than 12 units prior to 1 July, 2012 and more than one residential unit in a complex from 1 July, 2012. Admittedly in the present case, the appellant constructed individual residential houses, each block, being a residential unit which is an admitted fact. In any case, it appears that the legislature did not want to tax construction of individual residential units to the levy of service tax. We find that the learned Commissioner have erred in considering the approved plan for construction of more than 12 individual units on a large plot of land as a residential complex which we find is wrong and misconceived. Accordingly, we find that the show cause notice is not maintainable. Accordingly, we allow this appeal and set aside the impugned order. The appellant shall be entitled for consequential benefits in accordance with law." (emphasis supplied) 22. A Division Bench of the Tribunal in Shri A.S. Sikarwar vs. CCE, Indore [Service Tax Appeal No. 871 of 2011 decided on 20.04.2012] als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot justified in holding that the appellant would not be entitled to the benefit of the Exemption Notification. 25. 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 Commr. Of Cus., C. Ex. & S.T. vs. Indian Farmers Fertilizers Coop. Ltd. [2014 (35) S.T.R. 492 (All.)] 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 20.06.2012, 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. The Commissioner (Appeals) was, therefore, not justified in rejecting the refund claim of the appellant on the ground of unjust enrichment. 26. The Commissioner (Appeals) also observed that the CENVAT credit for works contract services was admissible to the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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