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TMI Blog2018 (6) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... element of service tax from their service recipients, have not been brought on record either before the Adjudicating Authority or before the Commissioner (Appeals) or before this Tribunal - matter remanded back to the Adjudicating Authority for denovo adjudication on all issues including the issue of limitation, after hearing the appellant - appeal allowed by way of remand. - Service Tax Appeal No. ST/58923/2018-ST [DB] - ST/A/51959/2018-CU[DB] - Dated:- 17-5-2018 - MR. C.L. MAHAR MEMBER (TECHNICAL) And MR. AJAY SHARMA, MEMBER (JUDICIAL) Present for the Appellant: Mr. R.S. Sharma, (Advocate). Present for the Respondent: Mr. G.R. Singh, AR PER: AJAY SHARMA The instant Appeal has been filed by the Appellant from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices specifically adding Service Tax in the value of Work done and the agreements also reflect that Service Tax will be charged extra and the same shall be borne by the Society or University whichever is the case. Since the appellant has transferred the burden of service tax on its client and therefore it does not satisfy the clause of Unjust Enrichment . 3. On Appeal, the Commissioner(Appeals) also dismissed the Appeal filed by the appellant on two grounds. Firstly on the ground of limitation with the observation that the appellant was required to file the refund claim within one year from the date of payment of service tax, whereas they have filed refund claim only on 23.6.2011 for the period March, 2008 to March, 2010 i.e. after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The definition as given in S.65 (30A) of the Act w.e.f 16.6.2005 is as under:- S. 65 (30A) Commercial or Industrial construction Service means (a) Construction of a new building or a civil structure or a part thereof; or (b) construction of pipeline or conduit; or (c) completion and finishing services such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pool, acoustic applications or fittings and other similar services in relation to building or civil structure; or (d) repair, alteration, renovation or restoration of, or similar services in relation to, building or civil structure, pipeline or co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir own use, renting it out or for selling it subsequently) are not taxable service providers. However, if such real estate owners hire contractor/ contractors, the payment made to such contractor would be subjected to service tax under this head. The tax is limited only in case the service is provided by a commercial concern. Thus service provided by a laborer engaged directly by the property owner or a contractor who does not have a business establishment would not be subject to service tax. 13.2 The leviability of service tax would depend primarily upon whether the building or civil structure is used, or to be used of commerce or industry. The information about this has to be gathered from the approved plan of the building ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey do not satisfy the clause of unjust enrichment. The aforesaid submission of the ld. AR was contested by the ld. Advocate for the Appellant and they relied upon the letters from the Society/University and also the certificate from CA and further submitted from these documents it is established that the amount of service tax was borne by the Appellants. 7. We have gone through the letter dated 31.3.2009 issued by the society and letter dated 30.9.2010 issued by the university asking the appellants to revise their bills without charging Service Tax. But the appellant did not produce on record any document to show that they revised their bills or refunded them the element of service tax received by the appellants during the course of rend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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