TaxTMI 
TaxTMI 
2023 (10) TMI 502
X X X X Extracts X X X X
X X X X Extracts X X X X
....and Shri R. Rajaraman, Ld. Assistant Commissioner for the Revenue. 3. After hearing both sides and after going through the documents placed on record, we find that the only issue to be decided by us is: whether the appellant's claim for refund of Service Tax is proper and correct? 4. The appellant filed a refund claim on 06.04.2011, the date of payment of Service Tax is 26.03.2010, and there is no dispute on the above dates. 5.1 Brief facts which are relevant for our consideration are that the appellant had entered into an agreement for sale of undivided share of 19.5 cents of land and another agreement dated 17.06.2010 for construction of 1005 sq. feet flat and the said property was located within the proposed residential complex ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... time-limitation of one-year had lapsed when the application for refund dated 06.04.2011 was made and therefore the same was time-barred, the exclusion clause in terms of Board Circular No. No. 108/02/2009-S.T. (supra) was available only for the construction of residential complex by a person intended for personal use, it was the builder who got sanctioned the plan for construction of group housing project, which was clearly covered under the definition of 'residential complex' as defined under Section 65(91a) of the Finance Act, 1994. 5.4 In reply, the appellant appears to have explained inter alia that though the builder had remitted Service Tax to the Government exchequer, but the same was paid by the appellant from her pocket, even t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mmissioner of Service Tax, Mumbai [2013-TIOL-681-CESTAT-MUM]; the Revenue has not been able to controvert the orders of the co-ordinate Benches nor has the Revenue filed any contrary orders/judgements and hence, in the light of the consistent view expressed by co-ordinate Benches, the said view is required to be followed. 8.2 On the allegations of time-limitation, the Ld. Chartered Accountant invited our attention to paragraph 9 of the Order-in-Original wherein though the adjudicating authority has recorded the submissions of the appellant, but however, has not cared to discuss nor controvert the same. For the sake of convenience, that part of paragraph 9 of the Order-in-Original is reproduced hereinbelow: - 9. Per contra, Ld. Assista....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pulated under Section 11B ibid. 10.4 Further, we also note that the Department has accepted the said decision of the Hon'ble Gujarat High Court vide Circular No. 1063/2/2018-CX dated 16.02.2018, by which act the said judgement of the Hon'ble Gujarat High Court has attained finality and so has the decision therein. 10.5 In view of the above, we are clear that the time-limitation for refund application under Section 11B in the case on hand is to be reckoned from the date of original filing of such application. Hence, the issue of time-bar does not arise in the case on hand and to this extent, therefore, the impugned order cannot sustain. 11.1 Section 11B - claim for refund of duty and interest, if any paid on such duty, reads as unde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....me. Moreover, if we accept the reasons in the Order-in-Original, as upheld in the impugned order, that the builder had discharged Service Tax rightly since it was for its self-use, then the said finding clearly defies the logic behind the concept of self-service. If the construction is for the self-use of the builder, then perhaps there may not be any liability on its part to pay Service Tax, but still the Revenue consciously accepted such payment just to deny the refund to the appellant before us. Hence, the denial, as made by the adjudicating authority, which was subsequently upheld, is unsustainable for the reason that the same is without any basis, for which reason the impugned order is set aside. 12. Resultantly, the appeal is allow....