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TMI Blog2025 (3) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... integra as being already decided by the Principal Bench of the Tribunal in Macro Marvel Projects Ltd. v/s Commissioner of Service Tax, Chennai [2008 (9) TMI 80 - CESTAT, CHENNAI] wherein the demand of service tax was for the period 16 June, 2005 to November, 2005 under "Construction of Complex" service under Section 65(30a) of the Act. The Bench examined the scope of 'Construction of Complex' and the meaning of 'Residential Complex' under section 65(91a) of the Act and observed 'Admittedly, in the present case, the appellants 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 are also not impressed with the plea made by the appellants that, from 1-6-2007, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period. Later, the appellant filed the refund claim of Rs.8,73,180/- (565980 + 307200) on 11.09.2015. However the claim was initially rejected vide Order-in-Original No. 17/2016-17 dated 16.05.2016. Appeal against the said order has been rejected vide the impugned Order-in-Appeal. Being aggrieved the appellant is before this Tribunal. 2. We have heard Shri Rajagopal Chandrashekhar, learned Chartered Accountant for the appellant and Shri Aejaz Ahmad, learned Authorized Representative for the respondent. 3. Learned Chartered Accountant for the appellant has submitted that the present case relates to refund of amount of tax and interest paid under protest. No show cause notice to adjudicate the issue of taxability of services provided by the appellant was issued, in spite of having being filed a letter of protest. The impugned show cause notice was issued proposed the rejection of refund claim on the ground that the services provided by the appellant were taxable. Since no service tax return was filed, it is not the case of self-assessment also. It is further submitted that the project 'Pleasure' constructed by the appellant is not covered under the definition of 'Residential Compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said tax liability and has also not produced any evidence to show that the burden of tax has not been passed to the customers. Therefore, the impugned refund claim has rightly been rejected also for the reason of bar of unjust enrichment. Learned Departmental Representative has relied upon the decision of the Tribunal in the case of Modi & Modi Constructions Vs. Commr. of Cus., C.Ex. & S.T., Hyderabad-II reported as 2021 (45) GSTL 398 (Tri.- Hyd). With these submissions, the present appeal is prayed to be dismissed. 5. Having heard the rival contentions and perusing the records, we foremost peruse Section 65(91a) of the Act which defines 'Residential Complex' as follows: "(91a) "residential complex" means any complex comprising of- (i) a building or buildings, having more than twelve residential units; (ii) a common area; and (iii) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system, located within a premises and the layout of such premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed by a person dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, we are also not impressed with the plea made by the appellants that, from 1-6-2007, 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 or a part thereof' stands included within the scope of 'works contract'. But, here again, the definition of 'residential complex' given under section 65(91a) of the Act has to be looked at. By no stretch of imagination can it be said that individual residential units were intended to be considered as a "residential complex or a part thereof." The Civil Appeal filed by the Department to assail the aforesaid order of the Tribunal was dismissed by the Supreme Court on 7 July, 2009 reported as 2012 (25) STR J514 (SC). 5.3 We also find that the definition of 'Residential Complex' as per Section 65(91a) of the Act is applicable for both the entries under Section 65(105)(zzzza) for works contract. Therefore, there cannot be an argument that the expression 'Residential Complex' has to be interpreted in one manner for works contract and in a diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Macro Marvel Projects Ltd. v. CST, Chennai (supra) and A.S. Sikarwar v. CCE, Indore (supra) are not applicable to the facts of the present case because in those cases individual residential houses were constructed which did not satisfy the definition of residential complex reproduced above. Thus, we hold that impugned service clearly gets covered under construction of complex service liable to service tax." 5.5 Though the department has relied upon the decision of this Tribunal in the case of Modi & Modi Constructions (supra), however, we observe that the facts of the present case are similar with the facts as in the case of Macro Marvel Projects (supra) case. Also there has been no change in the definition of 'Residential Complex' in Section 65(91a) of the Finance Act since the Finance Act, 2005. Even post 2012 there has not been any change. The definition has been same as has been considered in Macro Marvel (supra) case. The decision of this Tribunal in the said case stands already affirmed by Hon'ble Supreme Court in 2009 itself. We do not find any reason to differ. Otherwise also, the decision of Hon'ble Supreme Court is the law of land in terms of Article 141 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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