TaxTMI 
TaxTMI 
2015 (12) TMI 1573
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.... the transactions made with the buyers of the flats. The appellant here is basing their argument on Circular No. 108/02/2009, dated 29-1-2009 on the subject of imposition of service tax on Builders issued by the C.B.E. & C., Department of Revenue, Ministry of Finance, New Delhi, saying that this circular clarifies that transactions and the activities under question are not to be subjected to service tax as the same would fall under the exclusion provided in the definition of residential complex given in Section 65(91a) of the Finance Act, 1994. The appellant states that they paid service tax by mistake of law and deserves to be laid claim of refund of the said tax paid earlier mistakenly. 2. The appellant states that they have two a....
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.... the service to any person, by any other person, in relation to construction of complex where an Explanation was added saying that service in question is liable for payment of service tax with effect from 1-7-2010, the day when this explanation took effect vide Notification No. 24/2010, dated 22-6-2010. 2.3 The appellant also argues that they have the evidence that liability of service tax, though paid mistakenly, was never passed on to their customers/buyers; they have the certificate(s) also from their buyers to this effect. 3. The learned AR Mr. Ajay Saxena appearing for the Revenue vehemently argues that the services i.e. the activities and transactions in question are liable to service tax under the construction of resi....
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.... (3) Porcelain Electrical Mfg. Co. v. CCE, New Delhi [1998 (98) E.L.T. 583 (S.C.)]. (4) Ambience Constructions India Ltd. v. CST, Hyderabad [2013 (31) S.T.R. 343 (Tri.-Bang.)]. 4. After careful examination and consideration of the facts on record and the submissions of both sides, the main issue which emerged is as follows : Whether the impugned transactions and activities (i.e. services in question) are liable for payment of service tax and whether these services would come under the exclusion clause of Section 65(91a) of the Finance Act, 1994 and whether the clarification issued by Circular No. 108/2/2009-S.T., dated 29-1-2009 by the Ministry of Finance in its Para 3....
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....ex 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 this clause, - (a) "personal use" includes permitting the complex for use as 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; This definition of "residential complex" says that it does not include a complex constructed by a person directly engaging another....
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.... activities or the transactions in question would not attract liability of payment of service tax under the service of construction of complex service as per the provisions of Section 65(105)(zzzh) which defines the taxable service of construction of complex. Of course the situation may be different after 1-7-2010, the date with effect from which an Explanation has been added to Section 65(105)(zzzh) of the Finance Act, 2010 (14 of 2010) dated 8-5-2010 and made effective from 1-7-2010 vide Notification No. 24/2010-S.T., dated 22-6-2010. 6. The appellant has claimed that as they paid service tax by mistake of law they deserve to be granted the refund of the said service tax. This order is holding that such activities/transactions and....
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....sion and in no other forum. An assessee must succeed or fail in his own proceedings and the finality of the proceedings in his own case cannot be ignored and refund ordered in his favour just because in another assessee's case, a similar point is decided in favour of the manufacturer/assessee. (See the pertinent observations of Hidayatullah, CJ. in Tilokchand Motichand extracted in Para 37). The decisions of this Court saying to the contrary must be held to have been decided wrongly and are accordingly overruled herewith. 7. From the above it is clear that the service in question is not liable for payment of service tax and the appellant's claim for refund would deserve examination and consideration as per the provisions of law as a....