TaxTMI 
TaxTMI 
2025 (12) TMI 877
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....ellants. The appellants have claimed refund of the both of the potion of service tax on the ground that construction of such houses for EWS and LIG was exempted as per S.No. 14(c) of the Notification No. 25/2012-ST dated 20.06.2012 as they have borne the incidence the tax. Both the authorities below rejected the refund claims on the ground of limitation as well as unjust enrichment. Against those orders, the appellants are before me. 3. Learned counsel for the appellant submits that as per work orders service tax was to be borne by the appellants and as per work orders, RHB has deducted service tax payable by them under Reverse Charge Mechanism out of the bills raised by the appellants. Hence, the appellants have only borne the incidence of tax. To support this contention he relied on the decision of Hon'ble Allahabad High Court in the case of CCEST Vs. Indian Farmers Fertilizers Coop. Ltd. reported as 2014 (35) STR 492 (All.) to say that refund can be claimed by any person who has borne the incidence of tax. He further submitted on identical facts in the case of S.P. Builders, Jodhpur where the service tax was deposited by the assessee on construction of individual/independent ....
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....unal in the case of Nahar Singh Contractor Vs. Commissioner of CGST & Central Excise, Jaipur reported as 2024 (8) TMI 1150 CESTAT New Delhi, wherein he said that bar of unjust enrichment is applicable and time limit is applicable in terms of Section 11B of Central Excise Act, 1944. 6. Heard the parties and considered the submissions. 7. I find that the Revenue is highly relying on the decision of Nahar Singh Contractor (supra), in the said case, the refund claim was filed after five and a half years from the order of this Tribunal. Therefore, it was rightly held that refund claim is barred by limitation as same is being filed beyond the extended period of limitation. Further, the appellant was failed to submit any evidence which shows that the construction of houses is not a part of any apartment or township developed by Rajasthan House Board and work was inclusive of service tax and the appellant has not produced any evidence that they have refunded the same to service receiver. In that circumstances it was held by this Tribunal that bar of unjust enrichment is applicable and refund claims were hit by bar of limitation. But facts in the matters in hand is altogether differen....
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....lude a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. Explanation:- For the removal of doubts, it is hereby declared that for the purposes of the clause, (a) "Personal use" includes permitting the complex for the use a residence by another person on rent or without consideration; (b) "Residential unit" means a single house or a single apartment intended for use as a place of residence;" 16. It is seen that a 'residential complex' has been defined to mean any complex comprising of a building or buildings, having more than twelve residential units; and a 'residential unit' has also been defined 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....
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....;construction of a new residential complex or a part thereof' stands included within the scope of 'works contract'. But, here again, the definition of 'residential complex' given under section 65(91a) of the Act has to be looked at. By no stretch of imagination can it be said that individual residential units were intended to be considered as a "residential complex or a part thereof." (emphasis supplied) 20. It needs to be noticed that the Bench also examined whether 'construction of a new residential complex or a part thereof' would be covered within the meaning of a 'works contract', after 1 June, 2007 and held that in this case also the definition of a new 'residential complex' given in section 65(91a) of the Act was required to be looked. The Civil Appeal filed by the Department to assail 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. 22. A Division Bench of the Tribunal in Beriwal Constructions Co. also exa....
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....He submitted that the activity of the respondent is liable for Service Tax under the services of "Construction of Complex Services" as defined under Section 65 of the Finance Act, 1994. It is also not disputed by the learned counsel for the appellant that the Service tax has been paid by the M.P Housing Board. The sole contention of the learned counsel for the appellant is that the respondent has built more than 12 residential units in a complex and, therefore, they are liable to pay Service tax. In the case of Macro Marvel Projects Ltd. (supra), this question has been considered by the Tribunal and the learned Tribunal very categorically stated that as per Clause (91a) of Section 65 of the Act, that construction of 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 dec....
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.... of Meenu Builders reported as (2025) 31 Centax 356 (Tri.-Del.), this Tribunal observe as under: "8. I find that the main issue in the impugned order is that it is alleged the appellant has not produced the relevant document in support of the payment by the Rajasthan Housing Board of the 50% of service tax which has been rejected by the learned Commissioner (Appeals). 9. I find that in paragraph 3 of the show cause notice it has been recorded as under :- "3 (i) On service portion in execution of works contract service provider is liable to pay service tax on 50% portion and on rest amount, service receiver is liable to pay tax under reverse charge mechanism. Since, the Contract/Work order awarded by RHB was including service tax, thus RHB has rightly deducted service tax and paid to the Government exchequer under Reverse charge mechanism. (ii) RHB has deducted the service tax from the payment to be made to the work order awardee as per the terms and conditions of the work order and deposited the same to Government exchequer fulfilling their tax liability under RCM. Thus it cannot be said the amount was in the nature of "deposit" as the service ta....
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....rises as appellant has paid service tax by mistake of law. In that circumstances on the refund claim sanctioned to the appellant whether the appellant are entitled to with interest or not, if yes then at what rate. 13. The said issue has examined by the Tribunal in the case of Gajendra Singh Sankhla versus Commissioner of CGST, Jodhpur (Raj.) vide Final Order No. 50597-50599 of 2025 dated 06.05.2025. In view of the decision of this Tribunal in the case of Gajendra Singh Sankhla (supra), wherein this Tribunal observed as under :- "6. On hearing the arguments advanced by both the sides, the sole issue arises is that in the case where service tax is paid by mistake of law, whether the provision of Section 11B was not applicable for grant of refund or not and what should be rate of interest applicable 6% or 12%. 7. Revenue has relied on the decision of this Tribunal in the case of Triumph International (India) Pvt. Ltd. (supra). In the said case although this Tribunal has referred the decision of Hon'ble Karnataka High Court in the case of KVR Constructions, but no findings are recorded how the said decision is not applicable, but relied on decision of Mafatl....
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....with the other conditions of Section 11B of the Act because it is not the case of the appellant Department that the burden of service tax was passed on to any other person. As a matter of fact, the controversy in this appeal revolves around the maintainability of the very application filed under Section 11B of the Central Excise Act and whether Sec. 11 applies to the facts of the present case at all. In the case of Mafatlal Industries Ltd. v. Union of India (supra), the question was with regard to the refund of Central Excise and Customs Duties. It was held that all claims except where levy is held to be unconstitutional, is to be preferred and adjudicated upon under Section 11B of the Central Excise Act, 1944 or under Section 27 of the Customs Act, 1962 and subject to claimant establishing that burden of duty has not been passed on to a third party. In such circumstances, it was held, no civil suit for refund of duty is maintainable. It also observes that writ jurisdiction of High Courts under Article 226 and of Supreme Court under Article 32 remains unaffected by the provisions of Section 11B of the Act. It was further held that concerned Court while exercising the jurisdiction u....
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.... ultra vires. Such action will be governed by the general law and the procedure and period of limitation provided by the specific statute will have no application (Collector of Central Excise, Chandigarh) M/s. Doaba Co-operative Sugar Mills Ltd., Jalandhar [1988 (37) E.L.T. 487 (S.C.) = 1988 Supp. SCC 683]; Escorts Ltd. v. Union of India & Ors. [1994 Supp (3) SCC 86] Rule 11 before and after amendment, or Section 11B cannot affect Section 72 of the Contract Act or the provisions of Limitation Act in such situations. My answer to the claims for refund broadly falling under the three groups of categories enumerated in paragraph 6 of this judgment is as follows : Where the levy is unconstitutional - outside the category (I) provisions of the Act or not contemplated by the Act - In such cases, the jurisdiction of the civil courts is not barred. The aggrieved party can invoke Section 72 of the Contract Act, file a suit or a petition under Article 226 of the Constitution and pray for appropriate relief inclusive of refund within the period of limitation provided by the appropriate law. (Dulabhai's case (supra) - para 32 - clauses (3) and (4)." ..... 17....
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....ered by the petitioner was exempted from to payment of Service Tax. What one has to see is whether the amount paid by petitioner under mistaken notion was payable by the petitioner. Though under Finance Act, 1994 such service tax was payable by virtue of notification, they were not liable to pay, as there was exemption to pay such tax because of the nature of the institution for which they have made construction and rendered services. In other words, if the respondent had not paid those amounts, the authority could not have demanded the petitioner to make such payment. In other words, authority lacked authority to levy and collect such service tax. Incase, the department were to demand such payments, petitioner could have challenged it as unconstitutional and without authority of law. If we look at the converse, we find mere payment of amount, would not authorize the department to regularise such payment. When once the department had no authority to demand service tax from the respondent because of its circular dated 17-9-2004, the payment made by the respondent company would not partake the character of "service tax" liable to be paid by them. Therefore, mere payment made by the r....
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....on'ble Karnataka High Court before the Hon'ble Supreme Court in case of Commissioner v. KVR Construction 2018 (14) G.S.T.L. J70 (SC). The Hon'ble Supreme Court dismissed the challenge to the order passed by the Karnataka High Court referred hereinabove and came to hold that the Karnataka High Court had held that the provision of limitation under section 11B of the Central Excise Act, 1944 would not apply for refund of service tax paid by mistake on exempted services even though the assessee had filed claim under Form-R which shows that they had treated such payment as duty but later on claimed it as not a duty. Mere payment of an amount by the assessee and acceptance by the Department would not regularize such an amount as duty if it was not actually payable and paid by mistake. It was further held that writ petition against the order of Commissioner (Appeals) rejecting refund of Service tax paid on exempted services as time-barred, is maintainable and cannot be rejected on the ground of availability of alternate appellate remedy particularly when payment of Service Tax exempted services held not be Tax/duty so as to attract the provisions of section 11B of Central Exci....