2022 (11) TMI 1003

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....t is not liable to tax as the appellant have constructed the individual houses single/duplex, which do not qualify as residential complex. 2. The brief facts are that the appellant is holding Service Tax Registration No.AABFR3294AST001 under Section 69 of the Finance Act, 1994 for 'Construction of Residential Complex Service", Construction Service in respect of "Commercial or Industrial Buildings, have filed a claim on 30.03.2009 for refund of service tax amounting to Rs.11,42,999/- paid by them on the services provided by them under "Works Contract Services" during April,2007 to September , 2008. Refund claim has been filed on the ground that as the services provided by them do not classify under 'Construction of Complex Services', and ....

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....l Residential units are not covered as Residential Complexe or part thereof. Further, I also observe that the Commissioner (Appeals-I), Jaipur vide Order-in-Appeal No.163(SLM)ST/JPR/2015 & 164(SLM)ST/JPR/2015 both date 14.05.2015 have allowed the appeal of the appellant in the same issue of the appellant for different periods and set aside the order-in-original. Relying on the above referred decision of the Apex Court, I find that no service tax is leviable on the construction of houses/duplexes by the appellant. 5.10 I find that out of Rs.11,42,999/- claimed as refund, an amount of Rs.3,99,607/- (176660 + 222947) deposited vide challan dated 29.12.2007 and 29.03.2008 is time barred as the said amount has been deposited beyond the ....

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....nt of tax as expenditure in their Profit and Loss Account. I am of the considered opinion that once the amount is booked in the expenditure/profit and loss account, it entails passing of the incidence of duty to the customers." 5. Being aggrieved, the appellant is before this Tribunal. 6. Ld. Counsel for the appellant states that once it has been held that no service tax was leviable on the construction of houses/duplexes constructed by the appellant for Housing Board, whatever tax they deposited under the wrong advice, no longer remains tax, but it is lying with the Department as Revenue deposit. For such amount of Revenue deposit, there is no limitation applicable as defined under Section 11 B of the Central Excise Act. So far unjus....