Custom, Excise & Service Tax Tribunal
M/S Sand Dunes Construction Pvt. Ltd vs Cce, Jaipur-I on 10 November, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing: 22.9.2016
Date of Pronouncement: 10.11.2016
Appeal No. ST/523/2008-DB &
M/s Sand Dunes Construction Pvt. Ltd. Appellant
Vs.
CCE, Jaipur-I Respondent
Appearance Ms. Asmita A. Nayak. Advocate - for the appellant Mr. Ranjit K. Ranjan, Advocate Ms. Neha Garg, A.R. - for the respondent Appeal No. ST/442/2008 (Arising out of common Order-in-Appeal No. 71(RKS)ST/JPR-2008 dated 28.4.2008 passed by the Commissioner of Central Excise (Appeals), Jaipur-I) CCE, Jaipur-I Appellant Vs. M/s Sand Dunes Construction Pvt. Ltd. Respondent Appearance Ms. Neha Garg, A.R. - for the assessee/Revenue Ms. Asmita A. Nayak. Advocate - for the appellant Mr. Ranjit K. Ranjan, Advocate CORAM: Honble Ms. Archana Wadhwa, Member (Judicial) Honble Mr. V. Padmanabhan, Member (Technical) Final Order No. 54922-54923/2016 Per V. Padmanabhan :
The present appeals are directed against the Order-in-Appeal dated 28.4.2008 passed by the Commissioner (Appeals), Jaipur. The assessee as well as the Revenue have filed appeals separately against the impugned order targeting different potions of the order. Both the appeals are being decided in this final order.
2. The assessee is engaged in providing commercial or industrial construction services as well as construction of complex services. They filed a refund claim of Rs.14,65,194/- before the Assistant Commissioner on 12.3.2007 for refund of service tax paid under the category of construction of residential complex. The refund claim was rejected on merits as well as on the ground of unjust enrichment. The adjudicating authority vide his order dated 18.6.2007 further held that a part of the refund claim amounting to Rs.3,26,770/- was also hit by limitation under Section 11B. When this order was challenged before the Commissioner (Appeals), he upheld the portion of refund which was hit by time bar. The rest of the refund to the extent of Rs.11,38,424/- was held to be admissible on merits but he ordered for crediting the same to the Consumer Welfare Fund on the ground of unjust enrichment. The Revenue is in appeal against the portion of the impugned order where the refund has been held to be admissible on merits. On the other hand, the assessee is in appeal claiming that the entire amount of refund should be paid to them in cash.
3. We have heard Ms. Asmita A. Nayak, and Shri Ranjit K. Ranjan, ld. Advocates for the appellant and Ms. Neha Garg, ld. AR for Revenue.
4. In the impugned order, the Commissioner (Appeals) has taken the view that the service rendered by the assessee is rightly classifiable under the category of works contract service, since the service rendered was in the nature of a composite contract involving supply of goods as well as rendering of service. We are in agreement with the findings of the ld. Commissioner (Appeals). This view finds support in the decision of the Honble Supreme Court in the case of CCE Vs. Larsen & Toubro Ltd. 2015 (39) STR 913 (SC). Since the disputed period is prior to the date of introduction of works contract services, no service tax will be payable by the assessee. Consequently, the refund claim is admissible on merits.
5. The original adjudicating authority has taken the view that an amount of Rs.3,26,770/- has been deposited by the assessee on 21.11.2005. The refund claim stands filed on 12.3.2007. Therefore, the claim will be hit by time bar as per Section 11B (i) of the Central Excise Act, 1944, since the period is beyond one year. Consequently, we uphold this portion of the order of the Commissioner (Appeals).
6. In the impugned order, a part of the refund which is admissible on merits has been ordered to be credited to Consumer Welfare Fund on the ground of unjust enrichment. The ld. Commissioner took the view that under Section 11B, it is a legal presumption that the burden would have been passed on to the Consumer. It is for the assessee to prove otherwise in order to get refund in cash. He has further recorded a finding that the assessee, other than oral assertion, has not submitted any documentary evidence to prove that the burden has not been passed on to the buyers. Even in the course of the present appeal, no such proof has been submitted. They have contended that no tax has been paid and which is not required to be paid, is to be refunded without any time limit. We find it difficult to accept this point of view Section 11B of the Central Excise Act, 1944 clearly prescribes the time limit for refund of any amount paid as tax. In the present case, the amount deposited is in the nature of service tax. Consequently, the refund will be governed by the provisions of Section 11B. Inasmuch as the assessee has not submitted any proof to the effect that the burden of tax has not been passed on to the customers, the refund, which otherwise merits sanction, will need to be credited to the Consumer Welfare Fund. We order accordingly.
7. In line with the above discussion, the appeal filed by Revenue as well as the assessee stand disposed of as above.
(Pronounced in Court on 10.11.2016) (Archana Wadhwa) Member (Judicial) (V. Padmanabhan) Member (Technical) RM 4