AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2026 (5) TMI 7
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....ces. 3. Details of the appeal are as under; Particulars Appeal No. ST/21393/2015 Period Of Dispute 04/2007 to 12/2008 Show Cause Notice No./ Date 69/2009 (R)17/2010-ST Order-in- Original No.174/2009 (R)- dated 30.10.2009 Order-in-Appeal Nos. 19-21/15-16 dated 28.04.2015 Refund/Demand of Service Tax Refund of Rs.9,19,768/- Service provided Construction of Complex Services 4. The above appeal is filed against a combined Orders-in-Appeal dated 28.4.2015 passed by Commissioner (Appeals), Cochin. 5. The issues involved in the present appeal for consideration are whether:- a) the services under dispute classified as "construction of complex service" as per section 65 (105) (zzzh) of the Finance Act, 1994 are exempt from service tax during the relevant period. b) the refund claim of Rs. 9,19,768/- filed on 18.08.2009 is within the time limit as per section 11 B of the Central Excise Act, 1944 and also attract unjust enrichment provision in view of the clause 11 of the agreement with customers which provides that all taxes should be borne by the clients. 6. The learned Adjudicating Authority vide Orders-in-Original 30.....
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....held in Commissioner, Central Excise & Customs, Kerala Vs. Larsen & Toubro Ltd - 2015 (39) STR 913 (SC) that "works contracts" are taxable only from 01.06.2007 and only under the category of "works contract" services as defined under section 65 (105) (zzzza), only pure services were held as taxable under existing categories of 'commercial or industrial construction' service [65(105)(zzq)] and 'construction of complex' services [65(105) (zzzh)]. Accordingly, service tax demand on composite contracts comprising of materials and labour are not sustainable for the period before and after 01.06.2007 under "construction of complex" services; further, relying on the M/s. Larsen & Toubro Ltd., decision (supra), the Hon'ble Chennai /Hyderabad benches of CESTAT have also held that composite contracts of construction involving supply of goods and services are taxable only from 01.06.2007 under the classification of "works contract service" and post 01.06.2007, the demand is not sustainable under any other service categories. 9. The learned CA in support of the above contention relied on the following case laws: a. Commr. of Cus., C.E. & S.T., Visakhapatnam-I Vs....
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..... 12. The learned CA also relied on the following case laws in this regard:- a. CCE & C Belgaum Vs. Mahakoshal Beverages Pvt., Ltd. 2014 (33) S.T.R. 616 (Kar.) b. Steel Authority of India Ltd. Vs. CCE, Mysore-[2023) 9 Centax 78 (Tri.-Bang)]. c. Commissioner Vs. Sun Pharmaceuticals Inds. Ltd. E.L.T. 3 (S.C.). 2015 (326) d. CCE, Bangalore Vs. Brindavan Beverages (P) Ltd. [2007 (213) ELT 487 (SC)] 13. The learned Authorized Representative (AR) for the Revenue reiterated the findings in the impugned order of Commissioner (Appeals) and relied on the decision of the jurisdictional Hon'ble High Court of Kerala in the case of M/s. Southern Surface Finishers Vs. Asstt. Commr. Of C. Ex., Muvattupuzha-2019 (28) G.S.T.L.202 (Ker.) 14. Heard both sides and perused the records. 15. We find that the appellant has filed a refund claim for the service tax paid on the services of 'construction of complex' service falling under section 65 (30a) read with section 65(105)(zzzh) of the Finance Act, 1994. The claim was rejected on the grounds of limitation under section 11B of the Central Excise Act, 1994 as applicable to service tax as per sect....
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....the relevant provisions of the Act, Rules or Notifications; or by failure to follow the vital or fundamental provisions of the Act or by acting in violation of the Fundamental Principles of judicial procedure: Category (III) Mistake of law - the levy or imposition was unconstitutional or illegal or not exigible in law (i.e. without jurisdiction) and, so found in a proceeding initiated not by the particular assessee, but in a proceeding initiated by some other assessee, either by the High Court or the Supreme Court and as soon as the assessee came to know of the judgment (within the period of limitation) he initiated action for refund of the tax paid by him, due to mistake of law : xxx xxx xxx 331. Subject to the above, if a levy or imposition of tax is held to be unconstitutional or illegal or not exigible in law i.e. without jurisdiction, it is open to the assessee to take advantage of the declaration of the law so made, and pray for appropriate relief inclusive of refund on the ground that tax was paid due to mistake of law, provided he initiated action within the period of limitation prescribed under the Limitation Act. Such assessee should prove the n....
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....nding the levy to be exigible for the services rendered, would be a levy made or paid under mistake of law and not one categorized as an unconstitutional levy or illegal levy. We cannot agree with the elastic interpretation made by the Learned Single Judge that the case would be one on account of mistake of fact in understanding the law. The mistake committed by the assessee may be one on law or on facts; the remedy would be only under the statute. Here we are not concerned with a case as specifically noticed in Mafatlal Industries Limited (supra) of an assessee trying to take advantage of a verdict in another case. Here the assessee had paid the tax without demur and later realised that actually there was no levy under the provisions of the statute. However, that again is a mistake of law as understood by the assessee and for refund, the assessee has to avail the remedy under the provisions of the statute and concede to the limitation provided therein. 10. B.P. Jeevan Reddy, J. after elaborate discussion, finds the Excise Act to be a self contained enactment with provisions for collecting taxes which are due according to law and also for refunding the taxes collected cont....