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TMI Blog2019 (8) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... ravelled beyond the scope of show cause notice which is legally not permissible for the authority to deal with at such stage of adjudication as well by Commissioner (Appeals) as this is a settled law in various judgements - reference can be made to the case of PRINCE KHADI WOOLLEN HANDLOOM PROD. COOP. INDL. SOCIETY VERSUS CCE. [ 1996 (11) TMI 72 - SC ORDER] - thus, both the authorities who have decided the issue that the services provided by the appellant is not of works contract and consequently rejected the refund claim, is absolutely illegal and incorrect. Whether there is unjust enrichment or otherwise? - HELD THAT:- The appellant has not passed the incidence of refund amount of 14 lakhs to any other person. Against this finding no chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax on construction services. The Central Government inserted section 102 in the Finance Act, 1994 to enable the assessee to claim refund of Service Tax paid during the period 01/04/2015- 29/02/2016. In view of insertion of section 102 in the Finance Act, 1994, the appellant filed refund claim of ₹ 14 lakhs paid for construction of building of Institute Of Kidney Disease as sub constructor of M/s Malani Construction. The appellants were issued a Show Cause Notice bearing F NO. SD/02/REF-85/2016-17 dated 23/09/2016 proposing to reject the refund claim filed by the appellant on the ground of unjust enrichment. The Adjudicating Authority, ie., Ld. Assistant Commissioner of Service, Ahmedabad vide his Order-in-Original no. SD-02/RE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on behalf of the appellant submits that as against the filing of refund claim, the show cause notice issued to the appellant only raised the issue of unjust enrichment. Therefore, the other issues that whether the service is of works contract or otherwise was not the issue raised in the show cause notice. However, the order is dealt with the aspect of nature of services which is beyond the scope of show cause notice. In this regard, he placed reliance on the following judgments: 1. Prince Khadi Woolen handloom Prod. Coop. Indl. Society v/s CCE 1996 (88) ELT 637 (SC) 2. Reckitt & Colman of India Ltd. v/s CCE 1996(88) ELT 641 (SC) 3. Commissioner v/s Reliance Ports & Terminal Ltd. 2016 (334) ELT 630 (Guj.) 4. CCE v/s. Ballarpur Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, merely to reject the refund claim. He submits that the appellant have provided the work contract services along with the material such as M.S. wire, while performing the construction of activity. Therefore it is works contract. The appellant have submitted by the relevant documents which prove beyond doubt that they had performed works contract services only. He submits that since appellant provided works contract service which was valued less than ₹ 5lakh, there was not requirement of obtaining registration under the VAT law. He also placed reliance on the decision of the Hon'ble Supreme Court in the case of CCE, Pro Lab 2015 (321) ELT 366 (SC). As directed by this Bench, the appellant filed additional documents such as ledger acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s who have decided the issue that the services provided by the appellant is not of works contract and consequently rejected the refund claim, is absolutely illegal and incorrect. Therefore, the findings as regard the issue of works contract is quashed and set aside. Now the issue remains to be decided is that whether there is unjust enrichment or otherwise. As regard unjust enrichment, even the Ld. Commissioner (Appeal) in Para 10 of his order dated 30.07.2018, observed as under: 10. As regards appellant's contention that the burden of service tax has not been passed on is not a matter of dispute as the adjudicating authority has concluded in the impugned order dt. 10.01.2018, that the appellant has borne the burden of service tax of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edominantly for use other than commerce, industry or any other business or profession is exempted under notification no. 09/2016-ST dated 11/03/2016 read with section 102 in the Finance Act, 1994. We have not paid the service tax to the said Aahir Construction and have advised them to take refund of service tax from the service tax department in view of the retrospective exemption." It is also observed that appellant have issued credit note to M/s Malani Construction for an amount of ₹ 14 lakhs towards Service Tax which was initially charged in the bill. With the ample of evidences as discussed above, there is absolutely no doubt that the appellant have not passed on the incidence of Service Tax paid by them to any other person. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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