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TMI Blog2025 (2) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... truction activity undertaken by the builder, however they were of a bonafide belief that they are not liable to pay service tax and therefore the service tax amount collected by the builder was to be refunded back to them. The appellants relied on the Board Circular No. 108/02/2009-ST dated 29.01.2009. 2. The brief facts of the case are the appellants purchased flats in the residential complex called 'Mantri Greens' constructed by the developer M/s. Abhishek Developers by entering into individual agreements with the developer and during the course of construction of the residential flats the developer had collected service tax from each of the appellant under the category of 'construction of complex' services. The appellants filed refund claims for the refund of the service tax paid by them. All the appellants were issued with Show cause notices (SCNs) on the grounds that the refund claims were not supported by the requisite documents. Further, the SCNs alleged that the claim of refund is hit by limitation under section 11B of the Central Excise 1944 as made applicable to service tax matters by virtue of Section 83 of the Finance Act, 1994. The appellants contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as regards 15 (fifteen) appeals they are filed beyond the condonable period and the appellate authority has no power to condone the delay beyond the condonable period of 30 days. Therefore 15(fifteen) appeals were dismissed as barred by limitation, as regards the remaining appeals the appellate authority set aside the order by way of remand for processing the refund claims afresh with the direction that the principles and guidelines laid down therein in this order on the issue of taxability should be considered and as far as the issue of limitation of time in preferring the refund application should also be considered on verification of facts and documents so as to determine as to whether the claims are filed within the limitation of time specified under section 11B of the Act. 6. The Adjudicating Authority on remand issued Order-in-Original No. 3/2020 dated 29.09.2020 against all the 45(forty five) refund claimants holding that 12(twelve) claimants have not approached the department and not furnished requisite documents to decide the eligibility of the refund claim and therefore these refund claims were rejected. As regards the other applicants who have entered appearance and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, which issue is no longer res integra as the Hon'ble High Court of Karnataka has held in favour of the Appellant holding that when an amount is paid which cannot be appropriated as tax, there is no time limit for claiming such an amount as provided under Section 11B of the Act; the Appellant specifically places reliance on the decision of the Hon'ble High Court of Karnataka in the case of Commissioner Vs. KVR Construction., reported in 2012(26) STR 195(Kar), wherein it was held that; "when the claim of the assessee is on the ground that they have paid the amount by mistake and therefore they are entitled for refund of the said amount; it was held that when there was no compulsion or duty cast to pay this service tax, the amount paid by the petitioner under mistaken notion, would not be duty or "service tax" payable in law; therefore, once it is not payable in law there was no authority for the department to retain such amount. By any stretch of imagination, it will not amount to duty of excise to attract section 11B Therefore, it is outside the purview of Section 11B." 10. The learned counsel further submits that this decision of the Hon'ble High Court of Karnataka w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim beyond the period of limitation. Since, refund claims have to be filed beyond the period of limitation prescribed under the Scheme of the Finance Act, 1994, incorporating Section 11B of the Central Excise Act, 1994, no case is made out for issuance of a mandamus. 15. In this petition, refund claim has been filed long after expiry the period of limitation under Section 11-B of the Central Excise Act, 1944 as made applicable to Service Tax under Finance Act, 1994. Therefore, there is no merits in the present writ petition". 14. Heard both sides and perused the records. 15. We find that in all the 22(twenty-two) appeals, the issue involved is with regard to the refund of service tax paid by the developer collected from the individual flat purchasers for which the individual flat purchasers have filed a refund claim in view of the Board Circular No. 108/02/2009-ST dated 29.01.2009 and the insertion of explanation to Section 65(105)(zza) of the Finance Act, 1994 with effect from 01.07.2010. We find that there is catena of decisions wherein it is held that service tax on 'construction of complex' service is not leviable for the period prior to 01.07.2010. We als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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