9911796707
TMI Blog2023 (9) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... ere tax is paid by mistake, no limitation is applicable. Further, it is found that admittedly, it is the appellant, who has borne the tax. Admittedly, the appellant have paid the part of tax by challan and part of the tax has been deducted by the Rajasthan Housing Board from their bills, and deposited under RCM. Accordingly, the appellant is entitled to the refund under dispute. The Commissioner (Appeals) have erred in travelling beyond the scope of show cause notice by observing that RHB may have availed the cenvat credit and further observing that the appellant have not challenged self-assessment, at any point of time and further, it is found that the where the tax is paid under mistake and the same has been accepted by the Revenue, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rejected the refund on limitation and unjust enrichment. 3. The appellant was engaged in construction of residential houses/complex and was registered with the department. For the period of 2012-2013 and 2013-2014, the appellant had done construction work of residential houses for Rajasthan Housing Board and also construction in respect of houses under EWS and LIG scheme. The appellant deposited the service tax by mistake and later they realised that the service tax is not payable by them, as their services are exempt under Sl.No. 14 (c ) of Notification No.25/2012 - ST dated 20.06.2012. Accordingly, the appellant filed refund claim on 02.07.2021. Thereafter, show cause notice dated 24th August, 2021 was issued proposing to reject the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt comprises the amount paid by the appellant through challan(s), that Rs.12,61,734/- and paid by RHB under RCM is Rs.27,38,062/-, thus totaling Rs.39,99,796/-. 6. Learned counsel further urges that the Hon'ble Allahabad High Court have held in CCE and ST versus Indian Farmers Fertilizers Cooperative Ltd - 2014 (35) STR 492 (All.) that refund can be claimed by any person, who has borne the incidence of tax. He further relies on the ruling of this Tribunal in the case of S.P. Builders, Jodhpur , where the Division Bench have held that service tax deposited by the assessee on construction of individual/independent residential houses, which was held by the Tribunal to be exempt from tax. Further, as per work orders, service tax was to be bor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a High Court have been affirmed by the Hon'ble Supreme Court reported at 2018 (14) GSTL J 70 (SC). Similar view was taken by the Hon'ble Supreme Court in the case of Shiv Shankar Dal Mills etc. Vs. State of Haryana & Ors. - AIR 1980 SC 1037. 8. Learned Counsel also refers to the 3rd Member ruling of this Tribunal in the case of Credible Engineering Construction Vs. CCE . There was a difference of opinion under similar facts and circumstances, where service tax was paid by mistake and thereafter, the refund was claimed. Both the members of the Division Bench had agreed that the assessee is entitled to refund on merits, as the tax was not payable, being eligible for exemption under Notification No. 25/2012 - ST. 9. The difference of opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount of Rs.27,38,062/-, which was deducted by RHB from the bills or amount payable to the appellant- assessee, the same was in respect of discharge of service tax liability by the Board under the reverse charge mechanism. The said service tax was paid by the Board under its registration number, and hence claim by the appellant- assessee of the said amount is not permissible under the law. 14. Having considered the rival contentions, I find that the issue involved is no longer res integra. In the aforementioned rulings, under the similar facts and circumstances, the Hon'ble Karnataka High Court in the case of K.V.R Constructions (supra) have held that no limitation is applicable for refund of tax paid under mistake. Further, the Larger ..... X X X X Extracts X X X X X X X X Extracts X X X X
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