2018 (9) TMI 1210 - AT - Service Tax

Refund of Service tax paid erroneously - SCN not issued - Principles of natural justice - Held that - n this case, no show cause notice has been issued to the appellant for rejection of their refund claim which shows that the appellant has not been given proper opportunity to defence their case. Moreover, the principle of nature justice has been violated by not granting any personal hearing at the time of consideration of the refund claim - in the absence of the issuance of the show cause notice, the refund claim is not rejected. Admittedly, in this case, the appellant has not constructed any residential houses on behalf of NBCC but has constructed Barracks for the purpose of training of CRPF mens, therefore, in terms of the Circular 332/16/2010-TRU- dated 24.05.2010, the refund claim cannot be rejected. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claim rejection, Construction Service tax payment, Show cause notice issuance, Unjust enrichment, Applicability of circular, Nature of construction activity

Refund Claim Rejection:
The appellant filed a refund claim for service tax paid on various services, including construction services for CRPF Barracks. The claim was partially rejected, leading to an appeal. The authorities below rejected a portion of the refund claim related to service tax deposited on CRPF Barracks being residential. The appellant challenged this rejection.

Show Cause Notice Issuance:
The appellant argued that no show cause notice was issued for the rejection of the refund claim, depriving them of a proper opportunity to defend their case. The absence of a show cause notice was highlighted as a violation of natural justice, impacting the rejection of the refund claim.

Unjust Enrichment and Applicability of Circular:
The respondent contended that the refund claim was barred by limitation and failed to pass the bar of unjust enrichment. Additionally, a circular was cited to assert the appellant's liability to pay service tax on construction by being a subcontractor of NBCC. However, the circular's applicability was disputed based on the nature of the construction activity undertaken by the appellant for CRPF Barracks.

Nature of Construction Activity:
The tribunal analyzed the nature of the construction activity, emphasizing that the appellant constructed Barracks for the training of CRPF personnel, which was deemed non-commercial. It was noted that the circular relied upon by the respondent regarding construction by NBCC did not apply to the appellant's case. As the construction was not for residential houses but for training purposes, the rejection of the refund claim based on the circular was deemed incorrect.

In the judgment, it was concluded that the appellant, as a subcontractor of NBCC, was entitled to the refund claim related to the construction of CRPF Barracks for training purposes. The rejection of the refund claim was set aside, emphasizing the absence of a show cause notice and the non-applicability of the circular cited by the respondent. The tribunal allowed the refund claim of the appellant and provided consequential relief, thereby allowing the appeal.