TaxTMI 
TaxTMI 
2026 (7) TMI 88
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....e for M/s. Kerala Muslim Educational Association ('KMEA' for short). Accordingly, the Appellant discharged the service tax in respect of all the services provided by them during 2008-09 and 2009-10 including the service tax on construction of college for KMEA without knowing the fact that the services provided to KMEA are not taxable. However the Customer of the appellant KMEA informed that being a charitable trust, they are not subject to service tax as per the Circular No.80/10/2004-S.T. dated 17.09.2004. Since appellant paid service tax against the construction carried out for KMEA also, appellant filed a refund claim on 14.10.2009 seeking refund of Rs.12,09,576/- which has paid by them by mistake from September 2008 to July 2009....
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....gistered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act XII of 1955 and hence, exempted from payment of service tax. Under these circumstances, the observation of the Ld. Commissioner (Appeals) going contrary to the averments in the show cause notice and impugned order is unsustainable in law. Learned Counsel further submits that the law is settled that Appellate Authorities cannot travel beyond the scope of the case set up in the show cause notice. In this regard, Learned Counsel relied on the following decisions:- (i) Jeevan Diesels & Electricals Ltd. Vs. CCE., Cus. & ST., Bengaluru-III - 2017 (353) Ε.L.T. 78 (Kar.) (ii) State of Gujarat Vs. Shanti Exports Ltd. - 2017 (3....
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.....09.2009 as annexure A while submitting reply to show cause notice on 21.01.2010. Learned Counsel further draws our attention to the statement of contract receipt from customers (KMEA) and payment of service tax paid during the relevant period of refund claim as reproduced below:- Quarter Total Contract Receipt Contract Receipt from KMEA Contract Receipts from other Clients Service Tax Paid for KMEA Service Tax paid for other Clients Total Service Tax Paid Challan number and date I^st Quarter 2008- 09 2,11,39,233 nil 2,11,39,233 nil 8,70,936 8,70,936 Challan No.14 04.07.08 ^IInd Quarter 2008- 09 1,58,20,201 30,00,000 ....
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....as forwarded to the Range Officer, Kalamassery Range for verification on 14.10.2009 and the same was received back vide O.C. No.733/2009 dated 25.11.2009 after verification, in which he has reported that the grounds for the refund application are set out in the claim is that the services were utilized by the said College established by the Kerala Muslim Educational Society which is a charitable society registered under the Travancore-Cochin Literary Scientific and Charitable Societies Registration Act XII of 1955 and hence exempted from payment of Service Tax. The claim was subjected to detailed scrutiny Section 65(105)(zzzza) defines Works Contract as:- (i) the transfer of property involved in the execution of such contra....
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....lant and acceptance of the same by department would not regularize such amount as duty if it was not actually payable and was paid by mistake. In such cases, provisions of Section 11B and 35B of Central Excise Act, 1944 is not applicable. As per the judgment of Hon'ble High Court of Karnataka in the matter of Commr. of. C. Ex. (Appeals), Bangalore Vs. KVR Constructions - 2012 (26) S.T.R. 195 (Kar.), such payment has to be treated as paid without any authority of law and it was maintained by Hon'ble Supreme Court in Commissioner of Vs. KVR Construction - 2018 (14) G.S.T.L. J70 (S.C.). Learned Counsel relied on the following decisions:- (i) RR Thulasi Builders (I) Pvt. Ltd. Vs. Commr. of CGST & CEx., Salem - (2025) 26 Centax 23....