2018 (5) TMI 118 - AT - Service Tax

Refund claim of service tax paid - appellant claims that the service tax was not liable to be paid and it was paid erroneously - Held that - the issue of leviability of service tax on construction services of residential complexes has attained finality by the judgment of Gujarat High Court in the case of Commissioner of Service Tax vs Sujal Developers 2011 (4) TMI 1023 - Gujarat High Court - Therefore, the appellant are eligible to refund of the service tax paid during the period 2005-2006. Since the refund claim has not been examined on the aspect of unjust enrichment, the matter needs to be remanded to the adjudicating authority to examine the the issue of unjust enrichment - appeal allowed by way of remand.

Summary

Issues:
Refund claim of service tax paid for construction services on residential complexes during 2005-2006; applicability of service tax laws; unjust enrichment aspect in refund claim.

Analysis:
The case involved four appeals challenging orders-in-appeals passed by the Commissioner of Central Excise (Appeals), Ahmedabad, regarding the payment and refund of service tax for construction services on residential complexes. The appellant initially paid service tax for the period 2005-2006 but later discontinued, claiming service tax was not payable on such services from 2006-2010. The appellant filed a refund claim of ?17,79,759/- between December 2006 to May 2007, stating that the service tax paid during 2005-2006 was erroneously paid and hence refundable. The refund claim was proposed to be denied through Show Cause Notices, which were later confirmed upon adjudication. The Ld. Commissioner (Appeals) rejected the appeals filed by the appellant, leading to the present appeals before the Appellate Tribunal.

The appellant's Chartered Accountant argued that as per the judgment of the Gujarat High Court in the case of Commissioner of Service Tax vs Sujal Developers, service tax was not payable on construction of residential complex services during the period from 2005 to 01.07.2010. Therefore, the appellant claimed eligibility for a refund of the service tax paid during the said period. The Chartered Accountant also pointed out that demand notices issued for recovery of service tax for the period 2006 to 2009 were decided in favor of the appellant by the Ld. Commissioner (Appeals) in a previous order. However, the issue of unjust enrichment was not discussed or decided by the authorities below.

On the other hand, the Revenue's representative reiterated the findings of the Ld. Commissioner (Appeals) and highlighted that no appeal was filed by the Department against the previous order dated 07.03.2012 dismissing the Revenue's appeal. The Tribunal noted that the issue of the leviability of service tax on construction services of residential complexes had been settled by the judgment of the Gujarat High Court. Consequently, the appellant was deemed eligible for a refund of the service tax paid during 2005-2006. However, as the aspect of unjust enrichment had not been examined in the refund claim, the matter was remanded to the adjudicating authority for further consideration. Therefore, the impugned order was set aside, and the appeals were allowed by way of remand to address the issue of unjust enrichment.

In conclusion, the Tribunal's decision emphasized the importance of examining the aspect of unjust enrichment in the refund claim of service tax paid for construction services on residential complexes during the relevant period, in light of the settled legal position regarding the leviability of service tax on such services.