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TMI Blog2020 (9) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoice No. BIEPL/ECO/ST/1002/2015-16 dated 29.12.2015 and BIEPL/ECO/ST/1007/2015-2016 dtd.01.01.2016 to Mr. Haresh V Kagrana (HUE) on receipt of Rs. 25,00,000/- and Rs. 27,50,000/- on 24.12.2015 from the appellant for service tax (including SBC) amounting to Rs. 90.625/- and Rs. 99,688/- respectly. The appellant cancelled the said flat, however, M/s. Bharat Infrastructure & Engineering Pvt. Ltd. have not refunded service tax amount to the Appellant. Therefore, the appellant claimed refund of the service tax of Rs. 1,90,313/- under the provisions of Section 11B of the Central Excise Act, 1944 (CEA) as applicable to Service Tax under Section 83 of the Finance Act 1994. 3. The Adjudicating Authority (AA) vide the impugned Order-ln-Original No. CGST/MUM(W)/R-107/2019-20 dated 06.12.2019 found that once a consideration has been received prior to receipt of the completion certificate. the entire value of construction become taxable and mere cancellation of booking of flat does not mean that there was no service. He further found that flat was booked by the Appellant on 28.12.2015 and booking was cancelled on 19.02.2019. The refund claim has been filed on 19.08.2019 that is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; Vide letter dated 10.08.2020 appellants furnished two documents viz (i) Indemnity/ Declaration from the builder. M/s. Bharat Infrastructure & Engineering P Ltd in original (ii) CA certificate in Original. Vide the indemnity bond dated 06.08.2020, M/s Bharat Infrastructure furnished details of Service Tax paid to the Department On the transaction. The also stated that as pointed out vide their letter dated 19.02.2019, they have not refunded the Service Tax of Rs. 1,90,313/- to the Shri Haresh V Kagrana. They also declared that they have not filed any refund claim for the said amount of Rs. 1,90,313/- with the Department and undertook that they would not be filing a refund claim of the said amount in future. 7. I have gone through the case records, grounds of appeal, oral and written submission made by the appellant. The issue under consideration is refund of service tax paid on account of cancellation of booking of flat. The appellant had booked a flat in the project of M/s. Bharat Infrastructure & Engineering Pvt. Ltd, costing Rs. 52,58,245/- from M/s. Bharat Infrastructure & Engineering Pvt. Ltd. and at the time of booking the flat had paid an amount of Rs. 52.50.000/- v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultimate buyer. Once a consideration has been received prior to receipt of the completion certificate, the entire value of construction becomes taxable, Further he found that the appellant had booked that flat on 28.12.2015 and Service Tax was required to be paid by the Service prover in the subsequent month. The refund claim was filed on 19.08.2019 and therefore it was time barred in terms of Section 11B of CEA. He also noted that Section 142(5) of the CGST Act. 2017, is applicable only in the refund case admissible to taxpayers under the existing Central Excise and Service Tax law; however the claim is filed in GST regime. AA also noted that the Service Provider (builder) has availed Cenvat Credit on selling of the under construction flat and has not reversed the availed Cenvat credit on the cancelled flat. Relying on the judgement of Hon'ble Apex Court in the case of Sahakari Khand Udyog Mandal Ltd, Vs CCE [2015 (181) ELT 328 (SC)], AA has concluded that the claim is also hit by the doctrine of unjust enrichment. 10. As regards AA's finding that refund does not accrue as the assessment was final and not provisional, I find that the argument is devoid Of merit as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund under Section 142(5) ibid gets strengthened from CBIC's above FAQ. 12. It is important that Section 142(5) provides that any amount eventually accruing shall be paid in cash. I further find that the clause notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 is extremely crucial. It free such claims from the fetters of limitation Ich is provided under sub-Section (1) of Section 11B. The only thing that is not overridden is the requirement of fulfillnent of unjust enrichment clause as provided under sub-Section (2) of Section 11B. 13. I find that no service has been provided to the appellant in this case and therefore the provision of relevant date of one year and date of payment of payment as per Section 11B of CEA cannot be made applicable in the present case. The service tax paid by the appellant is in the nature of deposit and not service tax. 14. Notwithstanding the above, even if the payment is in the nature of service tax, the date of cancellation of flat will be considered as the relevant date for calculating the time limit of one ..... X X X X Extracts X X X X X X X X Extracts X X X X
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