2025 (2) TMI 103 - AT - Service Tax

Refund of the service tax paid - appellants contended that the developer had collected the service tax wrongly and they paid the tax by mistake of law - applicability of time limitation u/s 11B of the Central Excise 1944 as made applicable to service tax matters by virtue of Section 83 of the Finance Act 1994 - Board Circular No. 108/02/2009-ST dated 29.01.2009 - insertion of explanation to Section 65(105)(zza) of the Finance Act 1994 with effect from 01.07.2010 - HELD THAT - There is catena of decisions wherein it is held that service tax on construction of complex service is not leviable for the period prior to 01.07.2010. It is also found that the service tax paid by the individual flat purchasers is during the period September 2008 to May 2010. Hence the service tax on construction of complex is not leviable during that period. Further it is found that the Hon ble High Court of Karnataka in the case of COMMISSIONER OF CENTRAL EXCISE (APPEALS) BANGALORE VERSUS KVR CONSTRUCTION 2012 (7) TMI 22 - KARNATAKA HIGH COURT held that When once there was no compulsion or duty cast to pay this service tax the amount of Rs. 1, 23, 96, 948/- paid by petitioner under mistaken notion would not be a duty or service tax payable in law. Therefore once it is not payable in law there was no authority for the department to retain such amount. By any stretch of imagination it will not amount to duty of excise to attract Section 11B. Therefore it is outside the purview of Section 11B of the Act. It is found that against the order of the Hon ble High Court of Karnataka the SLP filed by the Revenue was dismissed by the Hon ble Supreme Court reported in COMMISSIONER VERSUS KVR CONSTRUCTION 2011 (7) TMI 1334 - SC ORDER . Conclusion - The rejection of the refund claims by the Adjudicating authority/Appellate authority on the grounds of limitation under section 11B of the Central Excise 1944 as made applicable to service tax matters by virtue of Section 83 of the Finance Act 1994 is not tenable and are liable to be set aside. Appeal allowed.

The judgment from the CESTAT Bangalore addresses the appeals concerning the refund of service tax collected from purchasers of apartments in the residential complex 'Mantri Greens' by the developer M/s. Abhishek Developers. The core issues revolve around the applicability of service tax for the period prior to 01.07.2010, the limitation period for refund claims under Section 11B of the Central Excise Act, 1944, and the legal interpretation of payments made under a mistaken notion of law.

Issues Presented and Considered

The primary issues considered were:

Whether service tax was applicable to the 'construction of complex' services provided by the developer to the appellants for the period prior to 01.07.2010.
Whether the refund claims filed by the appellants were time-barred under Section 11B of the Central Excise Act, 1944, as applicable to service tax matters.
Whether payments made under a mistaken notion of law could be refunded outside the purview of Section 11B.

Issue-Wise Detailed Analysis

1. Applicability of Service Tax Prior to 01.07.2010

Legal Framework and Precedents: The appellants relied on Board Circular No. 108/02/2009-ST, which clarified that service tax was not applicable to agreements for construction of individual residential units. The insertion of an explanation to Section 65(105)(zza) of the Finance Act, 1994, effective from 01.07.2010, further delineated the taxability.
Court's Interpretation and Reasoning: The appellate authority, following the High Court's direction, concluded that service tax was not applicable for the period prior to 01.07.2010, as the service was considered self-service, not liable for tax.
Conclusions: The Tribunal agreed with the appellate authority's interpretation, confirming that service tax was not leviable for the period in question.

2. Limitation Period for Refund Claims

Legal Framework and Precedents: Section 11B of the Central Excise Act, 1944, prescribes a one-year limitation period for refund claims. The appellants argued that since the tax was collected under a mistaken notion, the limitation should not apply, citing the Karnataka High Court's decision in Commissioner Vs. KVR Construction.
Court's Interpretation and Reasoning: The Tribunal noted the Karnataka High Court's ruling that payments made under mistake do not constitute 'duty' or 'service tax' under Section 11B, thus exempting them from the limitation period.
Application of Law to Facts: The Tribunal applied the High Court's reasoning, finding that the appellants' payments did not constitute a legal tax obligation, thus not subject to the statutory limitation.
Conclusions: The Tribunal concluded that the refund claims should not be barred by the limitation period under Section 11B.

3. Payments Made Under Mistaken Notion of Law

Legal Framework and Precedents: The appellants cited decisions affirming that payments made under a mistaken notion of law are refundable, irrespective of the statutory limitation, as per Article 265 of the Constitution of India.
Court's Interpretation and Reasoning: The Tribunal emphasized the principle that no tax shall be levied or collected without the authority of law, supporting the refund of payments made under mistaken belief.
Conclusions: The Tribunal upheld the appellants' position, allowing refunds for payments made under mistaken belief, aligning with the High Court's and Supreme Court's precedents.

Significant Holdings

The Tribunal held that service tax was not applicable for the 'construction of complex' services for the period prior to 01.07.2010, based on the Board Circular and subsequent legal clarifications.
The Tribunal determined that the statutory limitation under Section 11B did not apply to the refund claims, as the payments were made under a mistaken notion of law, referencing the Karnataka High Court's decision in KVR Construction.
The Tribunal emphasized the constitutional mandate that no tax shall be collected without legal authority, supporting the refund of amounts paid by mistake.
All 22 appeals were allowed, with consequential relief, setting aside the rejection of refund claims based on limitation grounds.

The Tribunal's decision underscores the importance of adhering to legal principles regarding tax liability and the refund of payments made under incorrect assumptions, providing clarity on the applicability of statutory limitations in such contexts.

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