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TMI Blog2015 (12) TMI 1573X X X X Extracts X X X X X X X X Extracts X X X X ..... or refund would deserve examination and consideration as per the provisions of law as applicable during the relevant period. It is made clear that service is definitely under the exclusion category and not liabile for payment of service tax. This appeal is allowed by way of remand to the original adjudicating authority for examination and consideration of refund claim under the provisions of refund claims wherein the adjudicating authority will also examine the claim under both the criteria i.e. time bar as well as ‘unjust enrichment’.the service in question is not liable for payment of service tax and the appellant’s claim for refund would deserve examination and consideration as per the provisions of law as applicable during the relevant period. It is made clear that service is definitely under the exclusion category and not liabile for payment of service tax. This appeal is allowed by way of remand to the original adjudicating authority for examination and consideration of refund claim under the provisions of refund claims wherein the adjudicating authority will also examine the claim under both the criteria i.e. time bar as well as ‘unjust enrichment’.the service in question is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... = 2014 (36) S.T.R. 1010 (Mad.)]. (2) Maharashtra Chamber of Housing Industry v. UOI [2012 (25) S.T.R. 305 (Bom.)]. (3) Krishna Home v. CCE, Bhopal [2014 (34) S.T.R. 881 (Tri.-Del.)]. (4) Josh P. John Others v. CST, Bangalore [2014-TIOL-1753-CESTAT-BANG]. 2.1 The appellant is also arguing that their claim cannot be taken as time barred as they paid the tax by mistake of law and they had not collected the same from the customer/buyers. The appellant cites the decision of Hon ble High Court in the case of Geojit BNP Paribas Financial Services Ltd. v. CCE, Cus. S.T., Kochi [2015 (39) S.T.R. 706 (Ker.)] in support saying that the period of limitation will not arise as the service tax was paid by mistake. 2.2 The appellant also argues that there has been amendment in Section 65(105)(zzzh) in the definition of taxable service of construction of complex - i.e. the service to any person, by any other person, in relation to construction of complex where an Explanation was added saying that service in question is liable for payment of service tax with effect from 1-7-2010, the day when this explanation took effect vide Notification No. 24/2010, dated 22-6-2010. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 65(91a) of the Finance Act, 1994 and whether the clarification issued by Circular No. 108/2/2009-S.T., dated 29-1-2009 by the Ministry of Finance in its Para 3 covers these for declaring them as not liable to payment of service tax. 4.1 The issue of refund will arise only, if liability of service tax is decided in negative and if it is negative, then the normal provisions of examining and deciding the refund claim will be applicable and provisions of time-bar would definitely be applicable. It is also made clear that unjust enrichment aspect also has to be examined simultaneously. 5. These transactions and activities took place during the period of 2007-2008. The facts are clear that the appellant made two simultaneous agreements with the flat buyers; one for transferring undivided share in the land to the buyers and another for doing construction on behalf of flat buyers (construction agreement). Before we go further, let us refer to the definition of residential complex as given in Section 65(91a) of the Finance Act, 1994, which says as follows :- Residential complex means any complex comprising of - (i) A building or buildings, having more than t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 91a) of the Finance Act, 1994 are clear that said residences (flats) would not be covered under the definition of residential complex. Consequently these activities or the transactions in question would not attract liability of payment of service tax under the service of construction of complex service as per the provisions of Section 65(105)(zzzh) which defines the taxable service of construction of complex. Of course the situation may be different after 1-7-2010, the date with effect from which an Explanation has been added to Section 65(105)(zzzh) of the Finance Act, 2010 (14 of 2010) dated 8-5-2010 and made effective from 1-7-2010 vide Notification No. 24/2010-S.T., dated 22-6-2010. 6. The appellant has claimed that as they paid service tax by mistake of law they deserve to be granted the refund of the said service tax. This order is holding that such activities/transactions and the services provided by the appellant are not liable for payment of service tax; the claim of refund, therefore, is required to be examined as per the provisions of law of service tax on the subject of refund. Here the appellant argues that as the tax has been paid mistakenly, time-bar limitation is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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