2023 (8) TMI 706

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....onstruction of residential unit and due to lack of clarification at relevant time regarding service tax liability, builder had collected service tax from the appellant. The issue attained finality vide Board Circular dated 23.08.2007 and it was confirmed that service tax liability under construction of complex service is only applicable to builders who undertake residential complex having more than 12 residential units. Thereafter vide Board Circular dated 29.01.2009 it was clarified that the service liability will arise only on completion of construction in such case. If the builder carried out the construction and if the ownership of the property is transferred only after completion of the construction activity, such activity would not be....

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.... the builder. However, the appeal was rejected on the ground that as per Rule 4A of Service Tax Rules, 1994 the builder being a registered taxable service provider, the builder is bound to issue invoice/bill/challan containing such details and in the absence of such documents, refund cannot be allowed. The learned Commissioner (Appeals) also held that the appellant is not barred by any law for time being in force from selling the apartment. As such, appellant is not eligible for refund applied for. Aggrieved by the said order, the present appeal is filed. 2. The appeal was filed in the year 2016 against the payment made in the year 2008. When the matter came up for hearing, the learned counsel appearing on behalf of the appellant submitted....

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....that there is no bill or invoice. What is required according to the provisions of Section 11B of the Act is the evidence that the person claiming the refund has borne the service tax liability and not passed on the same to any other person. As long as the document shows that the service provider is a registered person, his registration number is available and details of service tax paid and the certificate by the developer that he has paid the service tax and statement showing the value of service tax are provided is sufficient to allow refund. The learned counsel also draws my attention to the Final Order No.20297-20306/2017 dated 13.02.2017 issued by this Tribunal allowing refund on similar ground. 3. Learned D.R. retreated the finding g....