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TMI Blog2019 (4) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Service (CICS)/Construction of Complex Service (CCS). Even if the activity/service is not subject to levy of service tax, it has to cross the hurdle of not being hit by unjust enrichment. In the present case, the Department has alleged that the appellants have shown the said refund amount in their Books of Account as expenditure. This apart, the appellant has not raised any invoices. Thus, it is not forthcoming from the records whether the appellants have passed on the burden of tax to another person or not - That such workings/calculations are after giving the appellant the benefit of cum-tax. This has to be verified. For the purpose of verifying as to whether the demand is hit by unjust enrichment, the issue requires to be rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts had then paid up the entire service tax along with interest. No Show Cause Notice was issued by the Department for recovery of the said amount. The appellant had discharged the service tax, as pointed out and calculated by the Officers of the Department. 3.1.2 Later, the appellant realized that as per Circular No. 108/02/2009-ST dated 29.01.2009., the appellants are not liable to pay the service tax. The subsequent Circular No. 151/02/2012-ST dated 10.02.2012 also clarified the same. The appellants are therefore not liable to pay the service tax during the impugned period. The same was paid only on the insistence of the Departmental Officers. 3.2 Further, the service tax was not collected from the customers. This is very much clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refund is not hit by unjust enrichment. The appellant has shown the refund in their Books of Account as expenditure. This would tantamount to indirectly passing on the liability to a third person. In the case of Union of India Vs. M/s. Solar Pesticide Pvt. Ltd. reported in 2000 (116) E.L.T. 401 (S.C.), it was held by the Hon ble Apex Court that the expression incidence of duty in relation to its being passed on to another person would take within its ambit not only the passing of the duty directly to another person, but also cases where it is passed on indirectly. The appellant having not established that the incidence of tax has not been passed on to another, the refund has been rightly rejected. 5. Heard both sides. 6. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold nearer to the date on which land is being made available in construction. 7.1 It is not disputed that the appellant had constructed 13 flats and had entered into construction agreement with 13 separate buyers. It is submitted by the Ld. Counsel for appellant that the appellant had provided service of design, planning and construction and thereafter, handed over such residential units for the personal use of the buyers. All the flats had enjoyed common facilities and therefore, the Department was of the view that the Construction would fall under Construction of Residential Complex Service as the individual units are more than twelve in number. 7.2 Apart from these Circulars, we take note of the fact that the T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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