TaxTMI 
TaxTMI 
2024 (12) TMI 794
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....levant period. They filed a refund claim of Rs.1,19,146/- on 23.06.2009 claiming that in terms of Board's Circular F.No.137/12/2006-CX dated 29.01.2009, the developers and builders are not liable for payment of service tax. Consequently, a show-cause notice was issued to them on 04.08.2009 proposing to reject the refund claim. On adjudication, the refund claim was rejected. Aggrieved by the said order, they filed appeal before the learned Commissioner(Appeals) who in turn rejected the appeal. Hence, the present appeal. 3.1. At the outset, the learned advocate for the appellant has submitted that the appellant are partnership firm and are undertaking business activity of builder or developer of residential complex/property. They had entered....
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....d is no more res integra and covered by the following judgments:- (i) CCE v. Keerthi Estates Pvt Ltd, 2019 (26) GSTL 227 (Tri-Bang.). (ii) Classic Promoters and Developers v. CCE, 2018-TIOL-2493-CESTAT-BANG. (iii) CCE v. U.B. Constructions (P) Ltd, 2013 (32) STR 738 (Tri-Del.). (iv) Krishna Homes v. CCE, 2014 (34) STR 881 (Tri-Del.). (v) Mera Baba Realty Associates (P) Ltd v. CST, 2017 (49) STR 257 (Del.). (vi) CST v. Pragati Edifice Pvt Ltd, 2019 (31) GSTL 241 (Tri-Hyd.). (vii) Shanmuga Construction Services v. CST, F.O.No.40256/2023 dated 06.04.2023. (viii) Jagdish Pala v. CCE, 2022 (65) GSTL 471 (Tri-Ahmd.). Further, referring to the judgment of the Tribunal in the case of CST Vs. Pragati Edifice Pvt. Ltd. [2019(31) GSTL....
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....d by the appellant i.e. CST Vs. Pragati Edifice Pvt. Ltd. and other case laws (supra) are not applicable to the facts of the present case as in the said case, the appellant have been discharging service tax under Works Contract Service. 5. Heard both sides and perused the records. 6. The short question involved in the present appeal for consideration is whether the appellant is entitled to refund of service tax of Rs.1,19,146/- paid on Works Contract Service. 7. Undisputed facts of the case are that the appellant was registered for rendering Works Contract Service during the relevant period and discharged service tax @ 4% on the gross amount opting under Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 and not r....
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.... where the adjudicating authority had passed an order which is appealable under the statute, and the party aggrieved did not choose to file an appeal. This Court held that it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing the order. The provisions of the Central Excise Act, 1944 came up for consideration. The Court has observed: "10. Coming to the question that is raised, there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory ....
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....istant Collector that the assessee may file an appeal against the order before the Collector (Appeals) if so advised." (emphasis supplied) 40. In Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) 2004 (172) ELT 145 (SC)= (2005) 10 SCC 433, the Court considered unamended provision of Section 27 of the Customs Act and a similar submission was raised which was rejected by this Court observing that so long as the order of assessment stands, the duty would be payable as per that order of assessment. This Court has observed thus: "6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) case (2000) 6 SCC 650. Once an order of assessment is passed the duty would be p....