2017 (12) TMI 1166 - AT - Service Tax

Refund of service tax paid - duty paid under protest - construction of complex services - the appellant claimed that no Service Tax liability can be fixed on the appellant again as they have not provided any construction services - Held that - If the construction activity is in effect carried out by the contractors in terms of an agreement with the appellants, it will be the contractors who will be considered as service providers. The appellant will be service recipient. The appellants monitor the construction and managed the allotment and sale of these constructed houses. In our opinion, this by itself does not make the appellant as a provider of construction service. This aspect has not been examined by the lower authorities - matter placed on remand for re-examination. Unjust enrichment - Held that - if the appellant collected the cash and kept with them, the bar of unjust enrichment will apply - As stipulated in the legal provisions of section 11B of the Central Excise Act 1944 made applicable to Service Tax, the question of unjust enrichment may also be examined afresh by the original authority. Appeal allowed by way of remand.

Summary

Issues:
1. Appellants' claim for refund of Service Tax liability.
2. Applicability of Service Tax on services provided by the appellants.
3. Exemption for construction of residential complexes.
4. Principle of unjust enrichment in collecting Service Tax from buyers.
5. Whether the appellants are liable for Service Tax if construction work is carried out by contractors.

Analysis:
1. The appellants, engaged in construction and civil works, filed claims for refund of Service Tax paid during July 2010 to December 2012. The original authority and Commissioner rejected the claims. The appellant contended that no demand for confirmation of Service Tax liability existed, and the tax liability should not be subject to refund proceedings. They argued that as a statutory organization, their activities were not for consideration and hence not taxable.

2. The appellant's counsel argued that as an organization created by an act of legislature, their activities were statutory duties and not commercial services subject to tax. They claimed that being a non-profit entity, they were not liable for Service Tax. They also contended that the actual construction work was carried out by contractors who had already paid Service Tax, thus absolving the appellants of any further liability.

3. The AR for the respondent argued against exemption for construction of residential complexes by the appellants, stating that the services provided were taxable and not statutory duties. It was claimed that the appellants collected Service Tax from buyers, making them liable, and the principle of unjust enrichment applied.

4. The Tribunal noted that the appellants did not undertake construction activities themselves but engaged contractors for the work. The appellants only collected supervision charges and did not add value to the construction. The Tribunal agreed that if contractors had discharged Service Tax liability, the appellants should not be held liable. The matter was remanded for further examination by the original authority.

5. The Tribunal also directed a fresh assessment on the issue of unjust enrichment, emphasizing that if the appellants collected Service Tax from buyers and retained it, the principle of unjust enrichment would apply. The original authority was tasked with reevaluating this aspect in light of the legal provisions. The impugned order was set aside, and the matter remanded for a fresh decision.

In conclusion, the Tribunal allowed the appeals by way of remand, highlighting the need for a detailed examination of whether the appellants were liable for Service Tax based on the actual execution of construction work by contractors and the application of the principle of unjust enrichment in collecting Service Tax from buyers.