TaxTMI 
TaxTMI 
2023 (4) TMI 9
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....ng Authority Date of order of Commissioner (Appeals) Amount of refund rejected 1. ST/50485/2017 01.07.2012 to 30.09.2012 28.08.2014 22.12.2016 Rs.62,619/- 2. ST/50496/2017 01.01.2013 to 31.03.2013 01.09.2014 22.12.2016 Rs.82,255/- 3. ST/50497/2017 01.10.2013 to 31.12.2013 09.09.2014 22.12.2016 Rs.2,56,466/- 4. ST/50524/2017 01.10.2012 to 31.12.2012 25.06.2015 22.12.2016 Rs.1,57,305/- 4. The refunds claimed by the appellant were rejected for the reason that service tax was payable to prior July 01, 2012 and had not been exempted with effect from July 01, 2012 and that they were also hit by unjust enrichment. In regard to Service Tax Appeal No. 50524 of 2017, it was further held that the refund was barred by limitation. 5. The appellant claims that it had constructed individual/independent residential houses (stand alone house) as per the work orders given by the Rajasthan House Board [the Board]; the Residential Engineer of the Board certified that the houses that were constructed were individual residences having independent approach and entry with separate electricity and water connection; and the appellant had deposited service tax on such constructed ....
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....he Commissioner (Appeals) also held that the refunds were hit by unjust enrichment as the work orders were inclusive of service tax. In respect of Service Tax Appeal No. 50524 of 2017, refund was also rejected on the ground of limitation. 9. Shri O.P. Agarwal, learned Chartered Accountant appearing for the appellant submitted that the issue as to whether service tax was leviable has been decided by this Tribunal in the matter concerning the appellant in Service Tax Appeal No. 50298 of 2016 decided on September 27, 2022 and that this decision also held that the refund would not be hit by unjust enrichment. In regard to limitation, learned chartered accountant placed reliance upon the decision rendered on August 08, 2022 in Service Tax appeal No. 3078 of 2018. 10. Shri Ravi Kapoor, learned authorized representative appearing for the Department, however supported the impugned order and submitted that it does not call for any interference. 11. The submissions advanced by learned counsel for the appellant and the learned authorized representative appearing for the Department have been considered. 12. To appreciate the submissions, it would be useful to first examine the position reg....
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....ined in Explanation (b) to mean a single house or a single apartment intended for use as a place of residence. 17. The definition of a "residential complex" leaves no manner of doubt that it would be a complex comprising of a building or buildings, having more than twelve residential units. In other words a complex may have a building having more than twelve residential units or a complex may have more than one building each having more than twelve residential units. Independent buildings having twelve or less than twelve residential units would not be covered by the definition of "residential complex" 18. The contention of the appellant is that independent residential houses were built, each having a separate entry with separate electricity and water connection and a single building did not have more than twelve residential units. It is for this reason that the appellant contends that the houses constructed by it for the Rajasthan Housing Board will not be covered by the definition of a "residential complex" and, therefore, would not be taxable as the contract executed with the Housing Board was not in relation to construction of a complex. 19. This submission, for the reasons ....
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....sail the aforesaid order of the Tribunal was dismissed by the Supreme Court on 7 July, 2009. 21. This is what was also observed by a Division Bench of the Tribunal in M/s Lakhlan & Qureshi Construction Company vs Commissioner of Central Excise and Service Tax, Jaipur- I [Service Tax Appeal No. 55701 of 2014 decided on 14.10.2019]. 22. A Division Bench of the Tribunal in Beriwal Constructions Co. also examined the position both prior to July 01, 2012 and post July 01, 2012 and observed as follows: "6. Having considered the rival contentions and the admitted facts that the appellant have constructed individual units or row houses we find that it is evident from the aforementioned provisions both for the period prior to 1 July, 2012 and subsequent to that date, that construction of residential complex having not more than 12 residential units per building or block prior to 1 July, 2012 and two or more units after 1 July, 2012 is not sought to be taxed under the provisions of the Finance Act/Service Tax provisions. For the levy, it shouldbe registered complex comprising more than 12 units prior to 1 July, 2012 and more than one residential unit in a complex from 1 July, 2012. Admit....
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....f residential complex having not more than 12 residential units is not to be taxed under the Finance Act, 1994. For the levy, it should be a residential complex comprising more than 12 residential houses. Admittedly in the present case, the respondent constructed 15 independent HIG Houses, each being a residential unit. In view of the aforesaid, we are of the view that the learned Tribunal has not committed any legal error in allowing the appeal of the respondent. The decision of Macro Marvel Projects Ltd. (supra) has been affirmed by the Hon'ble Apex Court." (emphasis supplied) 25. It is true that w.e.f July 01, 2012 "construction of complex' is a declared service, but the Exemption Notification exempts services by way of construction, erection, commissioning or installation of original works pertaining to a single residential unit otherwise than as a part of a residential complex have been exempted. 26. In this view of the matter, the Commissioner (Appeals) was not justified in holding that the appellant would not be entitled to the benefit of the Exemption Notification. 27. The Commissioner (Appeals) was also not justified in holding that the refund was hit by the p....