9911796707
TMI Blog2025 (2) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... Service' and 'Construction of Residential Complex Service'. During the period from April 2008 to September 2008, the appellant claimed to have paid service tax on full value of the service, instead of paying service tax on 33% of the value after availing eligible abatement under Notification No. 1/2006-ST dated 1.3.2006. The appellant hence filed a refund claim for what he felt was excess paid service tax to the tune of Rs.25,74,023/-. After due process of law, the Ld. Adjudicating Authority rejected the entire claim on the ground that the appellant had provided only 'completion and finishing service' and not 'construction of commercial complex service' and was hence not eligible for the abatement provided under the notification and additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the "Jayam Consultants" work order the construction service pertaining to other work orders had commenced in April 2005, Oct 2005 and Feb 2006. The Ld. Advocate stated that the appellant had produced before the Original Authority as well as Commissioner (Appeals) contract copies and bill copies which clearly showed that appellant had rendered full construction service and not limited to finishing services. The Ld. Advocate further stated that the abstract and copies of bills contained description of work as detailed below: a. Brick work j. PCC 1 : 4 : 8 b. 9" bricks work k. reinforcement c. Sand filling l. shuttering d. Concreting m. Plastering e. Reinforcement n. R.R. Masonry f. Plastering o. earth pitch chamber g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase laws in their favor: 1. CCE, Bangalore Vs. Motorola India 2006 (206) ELT 90 (Kar), 2. CCE (Appeals), Bangalore Vs KVR Construction 2012 (26) STR 195 (kar.) 3. M/s Geojit BNP Paribas Financial Services Ltd vs. CCE, Kochi 2015-TIOL-1602-HC-KERALA-ST 4. Natraj & Venkat Associates 2010-TIOL-67-HC-MAD-ST 5. Srinivasa Steel Rolling Mills Ltd Vs CCE Coimbatore 2006 (193) ELT 419 (Tri. Che.) 6. Hind Agro Industries Ltd.v. Commissioner of Customs 2007-TIOL-811-HC-Del.Cus. 7. UOI VS ITC Ltd 1993 Supp. (4) SCC 326) The Ld. Advocate prayed that the appeal may be allowed and the impugned order set aside. 3.2 The Ld. AR reiterated the points given in the impugned order. He stated that the appellant had not furnished contract copies in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs Smt. K. Shobha Rani [AIR 2007 SC 1721], held that the rule which is the most universal, is that the best evidence which the nature of the case will admit shall be produced. So long as the higher or superior evidence is within a persons possession or may be reached by him, he shall give no inferior proof in relation to it. In the present case the Original Authority has at para 12.4 of the OIO, stated that the appellant had not furnished contract copies in spite of repeated reminders. No copies of the contract stated to have been submitted to the Original Authority and First Appellate Authority (if any), is seen filed along with the Appeal Memorandum. I am hence not in a position to examine the matter independently and disturb the findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this class of cases, the claim for refund arises under the provisions of the Act. In other words these are situations contemplated by and provided for by the Act and the Rules. [See para 18 of judgment] However, all refund claims except that of an unconstitutional levy must be filed and adjudicated under the refund provisions of the Central Excises and Salt Act 1944 or the Customs Act 1962, as the case may be. Hence as per the law declared by the Hon'ble Supreme Court the right which accrues in favour of the appellant to claim the refund is under section 11B of the Central Excise Act 1944 and therefore, the limitation prescribed under the section would apply. Further as per the judgement even in the case of an illegal levy or a levy which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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