TaxTMI 
TaxTMI 
2026 (4) TMI 1156
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....07.2012, public roads were exempted vide Sr. No. 13(a) of Notification no. 25/2012-ST dated 20.06.2012. The Department held the view that the said grounds were not legally tenable and the services provided by the appellant was covered under the category of "Works Contract Services". The construction of residential houses was covered under the category of "Construction Services" which are taxable. Accordingly, a Show Cause Notice dated 23.12.2014 for rejection of the refund claim was issued by the Department. The said show cause notice was adjudicated vide Order-in-Original No. 01/2015 dated 06.01.2015 by the Adjudicating Authority who rejected the entire refund claim. Being aggrieved, the appellant filed an appeal before the Commissioner (Appeals) who upheld the Order-in-Original and rejected the refund claim. Aggrieved by the said order, the appellant has filed the present appeal. 3. Learned consultant for the appellant submitted that the appellant is pressing for the refund of Rs. 8,67,703/- + Rs. 11,246/- relating to construction of Road and interlocking/chequered tiles as per work orders. Therefore, the appellant was agitating for a refund of Rs. 8,78,949/- out of the total ....
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....s of the case that the amount quoted by the appellant to the service recipient (Rajasthan Housing Board) was inclusive of service tax. Hence, the appellant had charged the component of the service tax amount from the service receiver. In support of his submissions, learned Authorized Representative relied upon the following decisions:- (i) ITC Ltd. vs. Commissioner of Central Excise, Kolkata-IV [2019 (368) E.L.T. 216 (S.C.)] (ii) BT (INDIA) Private Limited versus Union of India [(2023) 13 Centax 89 (Del.)] (iii) Jagdambha Phosphates versus Commissioner of CGST, Udaipur [(2024) 25 Centax 421 (Tri.-Del.)] 5. We have heard the Learned Consultant for the appellant and the Learned Authorized Representative for the Department and perused the case records. 6. We observe that during the course of adjudication proceedings as well as in the appeal, the appellant had not provided the complete set of contract with G-Schedule, Tax Payment Particulars, ST-3 Returns etc. No such documents have been provided before this Bench nor has any leave been taken of the Bench to submit the relevant documents before the Tribunal. 6.1 We note that the impugned order has ob....
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.... category of law, namely, quasi-contract or the doctrine of restitution. In the leading case of Fibrosa v. Fairbairn, [1942] 2 All ER 122, Lord Wright stated the principle thus : "....Any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution." Lord Denning also stated in Nelson v. Larholt, [1947] 2 All ER 751; "It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular framework. The right here is not peculiar to equity or contract or tort, but falls natur....
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....nd of license fee by the market committee to dealers, who have already passed on the burden of such fee to the next purchaser of the agricultural produce and who want to unjustly enrich themselves by obtaining the refund from the market committee, Section 23A, in truth, recognizes the consumer-public who have borne the ultimate burden as the persons who have really paid the amount and so entitled to refund of any excess fee collected and therefore directs the market committee representing their interest to retain the amount. It has to be in this form because it would, in practice, be a difficult and futile exercise to attempt to trace the individual purchasers and consumers who ultimately bore the burden. It is really a law returning to the public what it has taken from the public, by enabling the committee to utilize the amount for the performance of services required of it under the Act. Instead of allowing middlemen to profiteer by ill-gotten gains, the Legislature has devised a procedure to undo the wrong item that has been done by the excessive levy by allowing the committees to retain the amount to be utilized hereafter for the benefit of the very persons for whose benefit th....
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....chedule" of the following contracts have not been submitted: Work Order No. & date Scope of work as per contract Amount of service tax paid claim Period 1617/15.11.2011 Development work of Dwarkapuri Flats 15334 15550 30884 Oct. To Dec. 12 380/05.07.13 Development work of shopping centre in Sector 8 near community centre KBS, Jodhpur 304066 304066 608132 April to Sep. 2013 52/15.4.13 Construction of WBM Road and interlocking/chequered tile work at LIG & MIG Flats at Sector 1, KBS, Jodhpur 436678 431025 867703 Oct. 2013 to March 2014 2774/07.03.13 Development work of shopping centre in Sector 4, KBS, Jodhpur 2034/22.03.2013 Development work in Sector 08-KBS, Jodhpur 055/15.04.2013 Construction of common wall, main gate etc Total 756078 750641 1506719 6.4. As per the aforesaid contracts, we note that the appellant has provided the services of construction as well as development work and the nature of work reveals that the development, co....
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.... High Court is that since there is no list, no speaking order is passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts (supra) 44. The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re-assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re-assessment is not permitted nor conditions of exemption can be adjudicated. Reassessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It....
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....f the exercise of reassessment. 58. Section 27 enables a person to claim refund of duty or interest which may have been either paid or borne by it. Section 27(2) of the Customs Act, in terms identical to Section 11B (2) of the Excise Act, speaks of refunds being effected upon the proper officer being satisfied that the whole or any part of the duty paid is refundable. Section 27(2) is thus a provision which is pari materia with Section 11B (2) of the Excise Act. 59. The Supreme Court in ITC Limited, notwithstanding Section 27(2) employing the expression "satisfied' held that unless a self assessed return is revised or doubted in exercise of powers of reassessment, best judgment assessment or where it be alleged that duty had been short levied, short paid or erroneously refunded, those powers would not be available to be exercised at the stage of considering an application for refund. Having noticed the statutory position which prevails, we turn then to the decisions which would have a bearing on the question which stands posited. ...... 63. Their Lordships in ITC Limited categorically held that notwithstanding a self-assessed Bill of Entry having been merely endorsed by th....