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2018 (5) TMI 784 - AT - Service TaxRefund of service tax paid to the builder - refund claimed by the recipient of services (buyer of flat) - refund application filed was rejected on the ground that the respondent was not the petitioner before the Hon ble Delhi High Court 2016 (6) TMI 192 - DELHI HIGH COURT - Held that - composite contract in relation to construction of complex, should not be subjected to levy of service tax on the service defined under Section 65 (105) (zzzh) of the Act. In other words, who so ever provides such service, which is composite in nature, shall not be liable to pay service tax Claiming of the benefit of the judgment, 2016 (6) TMI 192 - DELHI HIGH COURT , cannot be denied to the appellant as the same was rendered in rem and not in personem . - Refund cannot be denied - decided against Revenue.
Issues:
Levy of service tax on composite contract for construction of complex under Section 65 (105) (zzzh) of the Finance Act, 1994. Analysis: The case involved a dispute regarding the levy of service tax on a composite contract for the construction of a complex, as defined under Section 65 (105) (zzzh) of the Finance Act, 1994. The respondent had filed a refund application based on a judgment by the Hon'ble Delhi High Court in a similar case. The High Court had ruled that no service tax should be levied on composite contracts for construction. The Original Authority rejected the refund application on the grounds that the respondent was not a petitioner in the High Court case and hence not entitled to benefit from the judgment. However, the Commissioner (Appeals) set aside the original order and allowed the appeal, remanding the case to the Adjudicating Authority. Upon review, the Appellate Tribunal noted that the High Court judgment clearly stated that service tax should not be levied on composite contracts for construction of complexes. The Tribunal emphasized that the benefit of the judgment should not be denied to the appellant as it was rendered "in rem" and not "in personem." Therefore, the Tribunal found no issue with the impugned order setting aside the adjudication order and allowing the appeal in favor of the respondent. In conclusion, the appeal filed by the Revenue was dismissed, upholding the decision of the Commissioner (Appeals) and affirming that service tax should not be levied on composite contracts for construction of complexes as per the judgment of the Hon'ble Delhi High Court.
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