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TMI Blog2016 (1) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... his ground as a valid ground for the said purpose in the absence of any other evidence to support the conclusion of the Commissioner (Appeals), that appellant was not promoter/builder of residential complex because payment of service tax under code number assigned to Industrial Construction Service cannot be a clinching evidence to discard the assertion of the appellant that it was promoter/builder of residential complex. It is evident that the amount of service tax of which refund was sought was indeed not payable by the appellant. As regards the issue of unjust enrichment, we find that the Commissioner (Appeals) has recorded cogent finding regarding the failure of the appellant to discharge the onus that the burden of service tax was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The appellant has contended that CBEC Circular No. 108/02/2009-ST dated 29.1.2009 clarified that the builders/ promoters are not liable to pay service tax under the category of construction of complex service defined under Section 65(105). It also cited the CBEC Circular No. 332/35/2006-TRU dated 1.8.2006 and Master Circular No. 96/7/2007-ST dated 23.8.2007. It also added that it has obtained a proper CA certificate and can establish that it did not pass on the burden of service tax to others. 3. The ld. DR, on the other hand, stated that presumption of unjust enrichment is required to be rebutted which the appellant has not been able to do and that the circulars quoted by the appellant relate to builders/promoters of residential co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ider and service recipient relation. Further, CBEC circular No. 108/02/2009-ST dated 29.1.2009 reaffirmed the same view and observed as under : 3. The matter has been examined by the Board. Generally, the initial agreement between the promoters / builders / developers and the ultimate owner is in the nature of agreement to sell . Such a case, as per the provisions of the Transfer of Property Act, does not by itself create any interest in or charge on such property. The property remains under the ownership of the seller (in the instant case, the promoters/builders/developers). It is only after the completion of the construction and full payment of the agreed sum that a sale deed is executed and only then the ownership of the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant was not promoter/builder of residential complex because payment of service tax under code number assigned to Industrial Construction Service cannot be a clinching evidence to discard the assertion of the appellant that it was promoter/builder of residential complex. Further, the impugned service tax was paid for the months of August and September, 2006 and as has been also held by Supreme Court in the case of CCE Vs. M/s Larsen Toubro Ltd. 2015-TIOL-187-SC-ST, no service tax was payable on the service rendered under works contracts prior to 1.6.2007. It is immaterial that the service provider was not registered under VAT because evasion of VAT would not automatically lead to liability to service tax. 5. In the light of the forego ..... X X X X Extracts X X X X X X X X Extracts X X X X
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