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TMI Blog2010 (10) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... This appeal has been filed based on the direction issued by the Hon'ble High Court of Madras, which disposed of the writ petition No. 16119 of 2010 filed by the appellant, vide Order dated 15-7-2010 wherein it was directed that the appellant should file an appeal with Commissioner (Appeals) within two weeks from the date of Order and the Appellate Authority shall entertain the appeal without reference to the delay and the appellate authority shall dispose of the appeal within the period of ten weeks from the date of receipt of the Copy of appeal. 2. Briefly stated facts of the case are that the appellant are having a Power plant at Kottayur, Kumbakonam. They had filed a refund claim of Rs. 15,65,253/- being Service tax paid by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the following reasons : 1. Service Tax had been rightly paid by M/s. Senthil Constructions under the service 'Commercial or Industrial construction' under Section 65(105)(zzq) and there was no scope to apply the definition of 'Residential complex' furnished under Section 65(91a) of the Finance Act, 1994 in the said service 2. The said construction was not covered under the exclusion clause of Section 65(91a) since the said residential complex had not been constructed by the appellant directly engaging any other person for designing or planning of the layout. Hence, even if it was taken without admitting that it was a service of construction of complex under Section 65(105)(zzz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this clause, - (a) "personal use" includes permitting the complex for use as residence by another person on rent or without consideration; (b) "residential unit" means a single house or a single apartment intended for use as a place of residence; 2. It is submitted that CBEC had amplified the meaning and concept of the term 'personal use' vide its letter reference F. No. B1/6/2005-TRU dated July 27, 2005 and the relevant portion of this communication is as follows :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same from them; that they had borne the service tax themselves and had not passed on the same to any other person and hence applied for the refund. 6. Personal hearing was held and Shri Joseph Prabakar, Advocate, appeared on behalf of the appellant and reiterated the submissions made in the grounds of appeal. Shri R. Jayasankar, Superintendent, appeared on behalf of the Respondent Department. 7. I have carefully gone through the case records and the oral as well as written submissions. The only issue to be decided in this case is whether the appellant is eligible for the refund of Service Tax paid by M/s. Senthil Construction, who had collected the same from the appellant. 8. It is an undisputed fact that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the layout, and the construction of such complex is intended for personal use as residence by such person." 10. It is not Department's case that the appellant had not directly engaged M/s. Senthil Construction for the construction of the complex or such complex is not intended for personal use. I find that the appellant's case squarely fits into the exclusion clause of the definition under Section 65(91a) of the Finance Act, 1994. It also noticed that the Board vide Circular F. No. 332/16/2010-TRU dated 24th May 2010 has clarified that as per definition, the residential complex (for service tax purposes) does not include a complex which is constructed by a person directly engaging any other person for designing/planning/construction a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vy of duty is ultra vires on cutting of marble blocks into marble slabs and tiles - No authority under which tax can be levied and collected on such activity and both parties were labouring under mistake of law - Demand, interest and penalty set aside - Amount already recovered from the assessee subject to provision under Section 11B of the Central Excise Act, 1944." 14. Again the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India reported in 1997 (89) E.L.T. 247 (S.C.), has held as follows : "All claims for refund except where the levy is held to be unconstitutional, to be preferred and adjudicated upon under Section 11B of the Central Excise Act, 1944" From the above judicial pronouncements including t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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