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TMI Blog2017 (12) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... provider of construction service. This aspect has not been examined by the lower authorities - matter placed on remand for re-examination. Unjust enrichment - Held that: - if the appellant collected the cash and kept with them, the bar of unjust enrichment will apply - As stipulated in the legal provisions of section 11B of the Central Excise Act 1944 made applicable to Service Tax, the question of unjust enrichment may also be examined afresh by the original authority. Appeal allowed by way of remand. - Service Tax Appeal No.60192-60195 of 2013 - ST/A/58488-58491/2017-CU[DB] - Dated:- 21-12-2017 - Mr. ( Dr. ) Satish Chandra, President And Mr. B. Ravichandran, Member (Technical) None for the Appellant Shri Sanjay Jain, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s statutorily mandated by the law. Relying on the clarification of CBEC dated 23.08.07, it is submitted that activities assigned to and performed by the sovereign/public authorities are under the provisions of any law or statutory duties. Such activities are purely in public interest and are undertaken as mandatory and statutory functions. These are not services provided for consideration and are accordingly not to be taxed. c) The appellant cannot be called as a builder. They are not undertaking any commercial activity. They operate on no profit, no loss basis. d) Houses constructed by the appellant are individual residential units not liable to Service Tax. Reliance was placed on the decision of Tribunal in Macro Marvel Projec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a residential complex, consisting of many houses, share common facilities, the same is covered by the tax entry. Admittedly, the appellants have collected Service Tax from the buyers of the residential units, and the claims are hit by principle of unjust enrichment. 4. We have heard both the sides and perused the appellant s records. 5. In our opinion, one important issue has been raised by the appellant which was not duly considered by the lower authorities for a finding. The appellants claimed that they have not undertaken any construction activity of residential units. The entire work of construction is entrusted to the contractors through tender process. The appellants neither have infrastructure, nor the work force required for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and remand the matter to the original authority fir a fresh decision. The original authority should examine the above legal issue after verifying the facts like contract details and payment of Service Tax for the construction activity by the contractors before taking a fresh decision. The appellant shall be provided adequate opportunity to submit all document and evidences in support of the above assertions. In case it is established by supporting evidence that the construction activities were in fact carried out by the contractors and such contractors have discharged applicable Service Tax on such work, there can be no liability to Service Tax on the appellant for the same work. 7. On the question of unjust enrichment, we note that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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