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TMI Blog2021 (11) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... unit, the attention drawn to the explanation by the learned counsel for the revenue also would be of little assistance to the revenue, even if we consider the residential unit in the background of the building or buildings, the residential units constructed by the respondent/assessee would not certainly fall under Section 65(91a) of Finance Act, 1994. Doctrine of unjust enrichment - HELD THAT:- As regards the doctrine of unjust enrichment plea raised by the assessee/respondent that only 40% of tax was collected under Karnataka Value Added Tax and not Service Tax on the purchase value as per the agreement entered into with the purchasers and limitations under Section 11B of the Central Excise Act would not be applicable to the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouses were constructed for individuals and the same was approved by the local authority in individual names of the owners of the plots and the individual houses, does not come within the purview of residential complex. The adjudicating authority rejected the refund claim on further appeal confirmed by the Commissioner (Appeals), the matter has reached the CESTAT whereby the CESTAT has allowed the appeal placing reliance on the ruling of Commissioner of Service Tax Vs. Macro Marvel Projects Ltd., CESTAT, Chennai which is confirmed by the Hon ble Apex Court in (2012) 26 taxmann.com 210 reported in Civil Appeal No. 4277/2009. Being aggrieved, the revenue has filed this appeal. 3. The appeal was admitted by this Court to consider the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 91a) of the Act and the explanation thereof. Macro Marvel Projects Ltd., (supra), is squarely applicable to the facts of the case and the same having been affirmed by the Hon ble Apex Court, the CESTAT was right in allowing the appeal filed by the assessee. 6. Having heard the learned counsel for the parties and perusing the material on record we are of the considered opinion that the matter requires to be examined in the light of the judgment of the Hon ble Apex Court in the case of Macro Marvel Projects Ltd., (supra) vis- -vis Section 65(91a) of the Finance Act, 1994. 7. Section 65(91a) of the Finance Act, 1994 and the explanation thereof reads as thus: Residential Complex has been defined under section 65(91a) of the Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants constructed individual residential houses, each being a residential unit, which fact is also clear from the photographs shown to us. In any case, it appears, the law makers did not want construction of individual residential units to be subject to levy of service tax. Unfortunately, this aspect was ignored by the lower authorities and hence the demand of service tax. In this view of the matter, we also not impressed with the plea made by the appellants that, from June 1, 2007, an activity of the one in question might be covered by the definition of works contract in terms of the Explanation to section 65(105)(zzzza) of the Finance Act, 1994 as amended. According to this Explanation, construction of a new residential complex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purchasers and limitations under Section 11B of the Central Excise Act would not be applicable to the facts of the case has been extensively analysed by the CESTAT and a finding has been recorded that no contracts were entered with respect of collection of service tax and there is only mention of 40% VAT collection in the agreements. Accordingly, it has been held that the principles of unjust enrichment and the limitations under Section 11B of the Central Excise Act would also be not applicable. 11. Having regard to these factual findings, vis- - vis, confirmation of the decision of Macro Marvel Projects Ltd., (supra) by the Hon ble Apex Court, we do not find any ground to interfere with the order impugned. Hence, we answer subst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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