Custom, Excise & Service Tax Tribunal
M/S. Ind Swift Lands Ltd vs Commissioner Of Central Excise on 27 January, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. II
Service Tax Appeal No. 53064 of 2014 - ST (SM)
[Arising out of Order-In-Appeal No. JAL-EXCUS-000/APP-43-13-14 dated 18/02/2014 passed by Commissioner of Customs & Central Excise, Chandigarh I.]
For approval and signature:
Honble Mr Ashok Jindal, Member (Judicial)
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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?
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Whether Their Lordships wish to see the fair copy of the Order?
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Whether Order is to be circulated to the Departmental authorities?
M/s. Ind Swift Lands Ltd. Appellants
Vs.
Commissioner of Central Excise Respondent
Service Tax, Chandigarh I Appearance:
Shri Rupinder Singh, Advocate for the Appellants Shri G R Singh, AR for the Respondent CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial) Date of Hearing /decision: 27.1.2015 FINAL ORDER NOS. A/ 50290 /2015-ST(SM) Per Ashok Jindal :
The appellant is in appeal against the impugned order rejecting their refund claim as time barred as well as appellant has failed to pass bar of unjust enrichment.
2. The facts of the case are that appellant is engaged in the activity of construction of residential flats. During the period July, 2006 to July, 2008, there was a dispute going on between the appellant and the CBEC to clarify whether the activity of construction of residential flats which are ultimately sold to the buyers is a transaction of sale of goods or rendering the services. The said dispute was settled in the year 2008. Thereafter on 5.9.08, the appellant filed the refund claim of service tax paid by then under protest during the impugned order . A show cause notice was issued to the appellant to deny the refund claim on merits as well as on limitation and on the ground of unjust enrichment. The adjudication took place on merits. It was held that appellant are entitled for refund claim but it was held that refund claim is barred by limitation and appellant has failed to pass the bar of unjust enrichment by both the lower authorities. Therefore appellant is before me.
3. Learned Counsel appearing for the appellant submits that as they sought clarification from the CBEC by letter dated 7.6.2006 intimating that they are builder who entered into an agreement with the prospective buyer of a flat in a residential complex and clearly mentioned that departmental authorities are pressuring the appellant to deposit the service tax and also mentioned to the concerned AC vide their letter dated 7.6.06 that they are depositing the service tax under the pressure of department. He further submits that there was no prescribed form to deposit service tax under protest in the Finance Act, 1994. In these circumstances, the letters written by the appellant shows that appellant has paid the service tax under protest. Therefore, the time limit prescribed under section 11B of the Central Excise Act, 1944 is not applicable. He further submits that they also intimated the ultimate buyers of the flats that they are paying the present service tax from their pocket till dispute is going on with the appellant and the CBEC. For the said service tax which is payable by the appellant, shall be charged separately and installments of cost of flat is being recovered from them. He further submits that said fact has been certified by Chartered Accountant by issuing a certificate and amount of refund is reflected in their balance sheet. Therefore, they have discharged their burden of unjust enrichment. In these circumstances, they are entitled for refund claim.
4. On the other hand, learned AR reiterated the finding of the impugned order and submits that Commissioner has rejected the refund claim rightly by relying on the decision of Indian Oiltanking Ltd. vs. CST, Mumbai [2012 (26) STR 50 (Tri-Mum).
5. Heard the parties. Considered the submissions.
6. In this case, on merits of entitlement of refund claim, there is no dispute. The first issue is to be decided by me is whether refund claim is barred by limitation as per section 11 B of the Act or not. I have gone through the records. The appellant has written the letter to CBEC on 7.6.2006 before the period of dispute for clarification whether they are liable to pay service tax on their activity or not and also clearly mentioned that department is pressurizing them to pay the service tax on their activity. I further find that letter to concerned Asstt. Commissioner on 7.6.2006 have clearly mentioned that appellant is depositing Service Tax under the pressure of department. As there is no prescribed form to raise protest for payment of service tax under the provisions of Finance Act, 1994, the letter written to Asstt. Commissioner placed before me by the appellant, clearly shows that service tax paid by the appellant is under protest. For deposits made under protest, the provision of section 11B of the Central Excise 1994 are not applicable. Therefore, I hold that the refund claims filed by the appellant are within time.
7. The next issue to be decided whether the appellant has passed the bar of unjust enrichment or not. I find that the appellant has written letters to the intended buyers of the flat that the dispute is going on between the appellant and CBEC about whether service tax is payable or not and in these letters it is clearly mentioned that the price agreed by the buyers is not inclusive of service tax and appellant is paying service tax from their own pocket if later on liability of service tax arises, the same will be paid by the intended buyers of the flat along with the agreed price of the flat. Further this fact has been certified by the Certificate issued by the Chartered Accountant and amount recoverable as service tax as reflected in their balance sheet. Therefore, I hold that appellant has discharged their burden of unjust enrichment. In these circumstances, the appellant is entitled to refund claim. In the result, I set aside the impugned order, allow the appeal with consequential relief, if any.
(dictated and pronounced in the open court )
( Ashok Jindal ) Member(Judicial)
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