2023 (1) TMI 252

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....uilder has returned/refunded to the buyer alongwith the advance amount paid, upon the cancellation of the two flats booked by the said buyer? 3. The facts of the matter in brief are as follows. The appellant is engaged in providing Construction of Residential Complex Service. They had filed two refund claims under Section 11B of the Central Excise Act read with Section 83, Finance Act, 1994 amounting to Rs.1,09,367/- and Rs.55,123/- respectively seeking refund of Service Tax paid in respect of two flats in Project Central Park which were booked by a buyer M/s. Symbio Generics, but were later cancelled by the said buyer. Upon cancellation, the appellant refunded advance amount paid by the buyer alongwith Service Tax amount collected by them....

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....urpose there has to have some 'service'. Unless service is there no service tax can be imposed. For the applicability of the provisions as referred to in the deficiency memo or in the Adjudication order or appellate order, the pre-condition is 'service'. If any service has been provided which is taxable as specified in the Finance Act, 1994 as amended from time to time then certainly the assessee is liable to pay, but when no such service has been provided then the assessee cannot be saddled with any such tax and in that case the amount deposited by the assessee with the exchequer will be considered as merely a 'deposit' and keeping of the said amount by the department is violative of Article 265 of the Constitution of India which specifica....