Custom, Excise & Service Tax Tribunal
Cce, Guntur vs M/S Rajyalakshmi Constructions on 6 May, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Bench SMB Court I Appeal No. ST/653/2011 (Arising out of Order-in-Appeal No. 26/2010 (G) ST dt.10.12.2010 passed by CCE (Appeals), Guntur) For approval and signature: Honble Ms. Sulekha Beevi, C.S., Member (Judicial) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? CCE, Guntur ..Appellant(s) Vs. M/s Rajyalakshmi Constructions ..Respondent(s)
Appearance Shri J.V.S. Chakarvarthy, Assistant Commissioner (AR) for the Appellant.
None for Respondent.
Coram:
Honble Ms. Sulekha Beevi, C.S., Member (Judicial) Date of Hearing: 06.05.2016 Date of Decision: 06.05.2016 FINAL ORDER No._______________________ [Order per: Sulekha Beevi, C.S.] The appeal is filed by Revenue against the order passed by Commissioner (Appeals) which allowed refund.
2. The respondents filed written submissions and requested to dispose the appeal considering the written submissions in their absence. Thus, the case was taken up for disposal after considering the arguments advanced by AR Sri J.V.S. Chakravarthy and also the written submissions filed by appellant.
3. The contention of the Revenue in the appeal is that the respondents are not eligible for refund and that Commissioner (Appeals) has erroneously sanctioned the refund. The respondents were registered under the category of Construction of Residential Complex Service. During the period, they paid service tax for the period 2008-09 of Rs. 14,27,133/-. They later realised that as per Board Circular they do not fall under the category of Construction of Residential Complex Service. Respondents then filed refund claim for the service tax paid under mistake of law. This was rejected by original authority. The respondents filed an appeal challenging this order. The Commissioner (Appeals) observed that activity of respondents do not come within purview of Construction of Residential Complex as clarified in Circular No. 108/02/2009-ST dated 29.01.2009. That in view of sale to individual customers by way of sale deed under Transfer of Property Act, the activity is out of the purview of Construction of Residential Complex. No further material is placed before me by Revenue to hold a different view on facts. It is settled position that refund claim cannot be rejected on ground of limitation when the amount paid by assessee is not a tax. When amount is paid under mistake of law, it does not have the colour of tax. The Commissioner (Appeals) has followed the judgment rendered in M/s Natraj & Venkat Associates Vs Assistant Commissioner, Chennai [2010(17) STR-3 (Mad)] and K.V.R. Constructions Vs Bangalore [2010(17) STR-6 (Karnataka)] to hold that in such cases limitation as provided in Sec 11B of C.E. Act, 1944 is not applicable. It is settled position that refund claim cannot be rejected on ground of limitation when the amount paid by assessee is not a tax. The view of the Commissioner (Appeals) that the amount collected without the authority of law is to be returned to the respondents does not call for any interference. The appeal is dismissed.
(Operative part of this order was pronounced in court on conclusion of the hearing) (SULEKHA BEEVI C.S.) MEMBER(JUDICIAL) Jaya.
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