9911796707
TMI Blog2024 (8) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicate the matter in 5.5 years; Further, CESTAT directed to examine availability of common facility within the approval layout, in terms of statutory definition of the work executed the appellant, and therefore, onus of providing the documentary evidence w.r.t. said details was on the claimant within in time limit os Section 11B, which they failed to do. Accordingly, there are no infirmity in the order under challenge when refund claim is held to be barred by time. Principles of unjust enrichment - HELD THAT:- The appellant failed to submit any evidence which show that constructed house is not part of any apartment/township developed by the Rajasthan Housing Board; the work order was inclusive of service tax and the assessee have not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d constructed residential flats at various sites in Jaipur developed by Rajasthan Housing Board and as such the activity is that of construction of complex services/construction of residential complex, which is taxable. The claim was also proposed to be rejected for being barred by the period of limitation. The proposal of said showcase notice was accepted vide Order-in-Original No. 51/2009 dated 08.12.2009. The appeal against the said order was rejected Vide Order-in-Appeal No. 347/2010 dated 21.09.2010. Being aggrieved, the appeal before this Tribunal was filed. 2. The Tribunal vide Final Order No.55744 -55748/2017 dated 07.08.2017, remanded back the matter to the adjudicating authority directing to decide the issue afresh in the light of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim dated 20.01.2009. The order confirming the claim to be barred by time is therefore liable to be set aside. Learned counsel further submitted that the activity of the appellant is exempted from the payment of service tax. The appellant paid the service tax under the mistake of law, hence the amount deposited is with the department without any authority to retain the same. Refund should have been sanctioned. The order rejecting the same is liable to be satisfied. The activity of appellant does not classify under Construction of Residential Complex Service as appellant executed the work of single independent residential unit and the work does not require any availability of common facilities within the approved layout. The appellant has wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of time when the amount deposited for the period April 2007 to September 2008 was prayed to be refunded vide claim of January 2009. But from the final order dated 07.08.2017, it is clear that the order is silent about the refund claim. The Order-in-Appeal passed pursuant to the said final order has rejected the refund claim on the ground of time bar and that the services rendered by the appellant are taxable services hence present is held to be the case of unjust enrichment. 6. I observe that the second refund application was filed by the appellant after five years from the date of CESTAT order and therefore show cause notice rightly been issued; not submitted any proof that they approached the department to adjudicate the matter in 5.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessment within its meaning includes self-assessment ; A self-assessed bill of entry is an order of assessment Section 47 of Customs Act, 1962 ( the Act ); A self-assessed bill of entry is an appealable order under Section 128 of the Act by any person aggrieved; and Refund under Section 27 of the Act is not maintainable till self-assessment is modified under Section 128 of the Act or under other relevant provision of the Act. Thus, the Court has concluded that there is no change in position post amendment to Sections 17, 27 and 47 of the Act vide Finance Act, 2011 with effect from 8-4-2011 and challenge to the assessment is a must for claim of refund. We feel that this was neither intended nor anticipated by the Central Government. A read ..... X X X X Extracts X X X X X X X X Extracts X X X X
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