Custom, Excise & Service Tax Tribunal
Future Foundations Pvt. Ltd vs Commissioner Of Central Excise, ... on 8 November, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/22022/2015-SM [Arising out of Order-in-Appeal No. TVM-EXCUS-000-APP-022-15-16 dated 28/04/2015 passed by the Commissioner of Central Excise, Customs and Service Tax, Cochin] Future Foundations Pvt. Ltd. Future House, Temple Road, Sasthamangalam, Thiruvananthapuram 695 010 Kerala Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax Trivandrum T.C. No.26/334 (1&2), I.C.E Bhavan, Press Club Road, Trivandrum 695 001 Kerala Respondent(s)
Appearance:
Shri P. Harikumar, Authorized Rep. For the Appellant Shri Mohammed Yusuf, AR For the Respondent Date of Hearing: 08/11/2016 Date of Decision: 08/11/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 21130 / 2016 Per: S.S GARG The present appeal is directed against the impugned order passed by the Commissioner (Appeals) vide her order dated 28.04.2015 whereby the appeal of the appellant was rejected. Briefly the facts of the present case are that the appellant is engaged in constructing residential complex on the land owned by them and later selling the flats to customers. They had taken registration for service tax under the category of Works Contract and opted for compounding scheme, under which they had to pay only 4% service tax. They had been paying service tax on this basis from February 2008 to November 2008 for their activity of construction of residential complex. Later they came to know of Circular No. 108/2/2009 dated 29.01.2009 issued by the Central Board of Excise & Customs clarifying that there is no service tax involved when one constructs residential complex on own land and later selling these flats to customers. Thereafter the appellant applied for refund of service tax of Rs. 7,95,980/- (Rupees Seven Lakhs Ninety Five Thousand Nine Hundred and Eighty only) paid by them during the period February 2008 to November 2008 for construction of residential complex on their own land. The Assistant Commissioner after due process rejected the refund on the ground that the appellant is registered under Works Contract Service whereas the Board Circular is regarding Construction of Residential Complex Service and hence not applicable and secondly the claim has been made after the period of one year from the payment of tax and hence time-barred and further the doctrine of unjust enrichment is applicable. Aggrieved by the said order the appellant filed an appeal before the Commissioner who rejected the appeal of the appellant vide her order dated 28.04.2015. Aggrieved by the impugned order the appellant has filed the present appeal.
2. I have heard the appellant as well as the learned AR and perused the records.
3. The main issue in the present appeal is whether the Board Circular No. 108/02/2009 ST dated 29.01.2009 is applicable in the present case and secondly whether the refund is time-barred under Section 11B of the Central Excise Act as applicable to service tax. In support of his submissions, the appellant relied upon the following decisions:
a) Ocean Builders Vs. CCE, Mangalore 2010 (19) S.T.R. 546 (Tri.-Bang.)
b) Classic Promoters and Developers Vs. CCE, Mangalore 2009 (15) S.T.R. 77 (Tri.-Bang.)
c) Mohtisham Complexes Pvt. Ltd. Vs. CCE, Mangalore 2009 (16) S.T.R. 448 (Tri.-Bang.)
d) Krishna Builders Vs. CCE, Raipur 2009 (16) S.T.R. 165 (Tri.-Del.)
e) Korath Gulf Links Builders Pvt. Ltd. Vs. CCE, Cochin 2010 (20) S.T.R. 516 (Tri.-Bang.)
f) Mohtisham Complexes (P) Ltd. Vs. CCE, Mangalore 2011 (21) S.T.R. 551 (Tri.-Bang.)
4. After hearing both the parties and on perusal of the records and after considering the decisions cited by the appellant, I allow the appeal of the appellant by setting aside the impugned order and remand the matter to the original authority to examine the issue afresh in the light of observations cited supra. (Operative portion of the Order was pronounced in Open Court on 08/11/2016) (S.S GARG) JUDICIAL MEMBER iss