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TMI Blog2017 (10) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri S. S. Garg, Judicial Member Shri Manoj Pillai, Advocate For the Appellant Shri Pakshirajan, Assistant Commissioner (AR) For the Respondent ORDER Per: S. S. Garg The present appeal is directed against the impugned order dated 28.04.2015/06.05.2015 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) rejected the appeal of the appellant. Briefly the facts of the present case are that the appellant is a registered provider of taxable service of Construction of Residential Complex and Works Contract Service under the Finance Act 1994. Appellant had undertaken the construction of two projects i.e. Muthoot Blue Mount Apartments and Muthoot Green Valley Mist during the period 04/2008 to 12/2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2009 is not applicable in the case of the appellant and secondly there is a unjust enrichment. 4. On the other hand, the learned AR defended the impugned order and submitted that in the grounds of appeal, the appellant has stated that they have raised construction on the land owned by them and they will produce the documents evidencing ownership over the land where they have constructed apartments but till today they have not been able to produce documents of ownership of land where the construction was raised. He further submitted that the appellants are not entitled for the exclusion provided by Circular No.108/02/2009 dated 29.01.2009. He also submitted that the Commissioner (Appeals) has also considered the factum of unjust enrich ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essory interest and a right to construct, but such rights do not constitute the person an owner of the property. I agree with the contention of the respondent that the builder should be a free title holder of the land and when the construction of residential complex is done on such land and where there is an agreement to sell between such builder and the ultimate apartment owner, then the activity of such builder till the execution of the sale deed tantamount to self service. Since the land owner and the appellant/builder are different persons, the service provided by them cannot be treated as self service. No proof was submitted to the effect that they had become the absolute owner of the land. Hence the circular ibid is not applicable in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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