TaxTMI 
TaxTMI 
2012 (4) TMI 427
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....Appeal). But this demand includes an amount of Rs. 2,50,000/- towards tax and Rs. 1,44,909/- towards interest paid by the respondents earlier but was refunded to them. 3. In the remaining seven appeals, the Respondents had paid service tax and later claimed refund of such service tax paid because the CBEC had clarified vide letter F. No. 332/35/2006-TRU dated 01-08-2006 and also vide circular 96/7/2007-ST dated 23-08-2007 that such tax was not payable by them. The adjudicating officer rejected their contention. The Respondents went in appeal against the adjudication order. The Commissioner (Appeal) allowed the appeals. Aggrieved by the orders of the Commissioner (Appeals), Revenue has filed the appeals. 4. The Respondents are builders/promoters for constructing residential complexes. They identify prospective buyers for flats and enter into agreements for sale of constructed flats and take money from the persons with whom they had agreements to sell the built flats. They finally transfer the built flats to the buyers and register it in the names of the byers. The period involved was prior to enactment of Finance Act, 2010. The question involved in these appeals is whether the res....
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....o earlier period. No retrospective effect has been given to the explanation added. The Supreme Court in the case of UOI Vs. Martin Lottery Agencies Ltd has ruled that such explanations causing adverse consequence to the public cannot interpreted to have retrospective effect. They also point out that the case before the High Court of Punjab and Haryana in the case of G. S. Promoters was the constitutional validity of the explanation added and not whether the explanation has retrospective effect. The Advocates for the Respondents rely on the following decisions were it was held in facts of similar nature that there was no service involved: (a) Magus Construction Pvt. Ltd Vs. UOI-2008 (11) STR 225 (Gau) (b) CST Vs Shrinandnagar-IV Co-Op. Housing Society Ltd-2011 (23) STR 439 (Guj); 10. They also rely on the clarification issued by CBEC vide 108/02/2009 ST dated 29-01-09 reading as under: "Subject: Imposition of Service tax on Builders - Regarding. Construction of residential complex was brought under service tax w.e.f. 1-6-2005. Doubts have arisen regarding the applicability of service tax in a case where developer/builder/promoter enters into an agreement, with the ultimate own....
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....oes not by itself create any interest in or charge on such property. The property remains under the ownership of the seller (in the instant case, the promoters/builders/developers). It is only after the completion of the construction and full payment of the agreed sum that a sale deed is executed and only then the ownership of the property gets transferred to the ultimate owner. Therefore, any service provided by such seller in connection with the construction of residential complex till the execution of such sale deed would be in the nature of 'self-service' and consequently would not attract service tax. Further, if the ultimate owner enters into a contract for construction of a residential complex with a promoter/builder/developer, who himself provides service of design, planning and construction; and after such construction the ultimate owner receives such property for his personal use, then such activity would not be subjected to service tax, because this case would fall under the exclusion provided in the definition of 'residential complex'. However, in both these situations, if services of any person like contractor, designer or a similar service provider are....
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....ple of unjust-enrichment will apply for refund of Service Tax also even though such principle is not specifically incorporated in Finance Act, 1944 and section 11B of Central Excise Act is not specifically made applicable to refund of service tax. Extracts from the said order of the Apex court is reproduced below. "From the above discussion, it is clear that the doctrine of 'unjust enrichment' is based on equity and has been accepted and applied in several cases. In our opinion, therefore, irrespective of applicability of Section 11B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11B of the Act or similar provision merely gives legislative recognition to this doctrine. That, however, does not mean that in absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden to consumers and if such relief is not granted, he would suffer loss." 17. In view of the decision of the Apex Court as above there is no doubt that princip....