TaxTMI 
TaxTMI 
2024 (3) TMI 638
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.... in construction and sale of units in residential and commercial complex. Appellant collects the advances from customers and register the unit in the name of the customers once the full payment is received and construction is completed. The service tax is being on the advances received though the completion of construction (underlying service) happens at later point. 4. In case of customer named Mr. Vivek Mundra who booked a villa No.61 and had been remitting the advance payments between the period from 2013- 14 to 2017-18 & appellant has discharged the applicable service tax. However, Mr. Vivek Mundra has cancelled the said booking in the year 2018 vide letter dt.16.08.2018. Since the flat booked earlier was cancelled, the appellant had....
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....additional charge was given. Therefore, the appellant has approached the concerned superintendent, however, he has not taken the refund application stating that the same is timebarred by now. Despite several attempts to submit the refund application in the department, the same has not been accepted, thereby, the refund application was submitted through registered post acknowledgement due (RPAD) with a specific request that acknowledgement of receipt dated 13.08.2019 may be given. The list of events have been brought to the notice of both lower authorities who never disputed it. 7. SCN dt.04.11.2019 was issued proposing to reject the refund claim, inter alia, on the grounds that the appellant has not submitted copy of agreement; they have....
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....e, the same is hit by time bar under Sec 11B of the Central Excise Act. He further observed that the amount of Rs.5,22,71,062/- was deposited by Mr. Vivek Mundra with the appellant without legal agreement and later the amount was remitted back by the appellant to Mr. Vivek Mundra with an extra amount of Rs.20,16,736/- (totalling Rs.5,42,87,798/-). 9. Being aggrieved, the appellant preferred an appeal before the Commissioner (Appeals), who, vide the impugned order, was pleased to reject the appeal agreeing with the findings of the Adjudicating Authority. 10. Being aggrieved, the appellant is before this Tribunal. 11. Learned Counsel for the appellant, inter alia, points out that in the OIO, there is no dispute with regard to the amo....
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....to the person to whom such an invoice had 12. Learned Counsel for the appellant urges that the appellant had rightly deposited the tax on the due dates as and when they received the part payments from the said prospective buyer - Mr. Vivek Mundra and had disclosed such amount in the taxable turnover in the periodical returns. As there is stipulation of service to be provided due to the deeming clause under Sec 66B of the Finance Act, which provides - there shall be levied a tax @ 14% on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may be prescribed. 13. Thus, the appellant has righ....
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....d of tax paid under the existing law in respect of services not provided shall be disposed of in accordance with the provisions of existing law and any amount eventually accruing to him shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 (unjust enrichment). 14. Thus, Sec 142(5) is a transitional provision providing for refund of service tax, the credit of which cannot be taken by way of removal of difficulty to the assessee. All other restrictions of refund have been done away with, save and except, unjust enrichment. Learned Counsel further urges that in view of the explicit provisions o....