RAGHAVENDRA MADHAVA DESHPANDE Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners filed the present Writ Petitions for a writ of certiorari to quash the order dated 18.04.2016 made in OIA Nos.489-548/2016 passed by the First Appellate Authority vide Annexure-K and for a direction to refund the amount paid by the petitioners as there was no authority to collect tax on the service rendered by the developer to the petitioners who are prospective buyers of Flats by construing the payment made as deposit as per the provisions of Section 72 of Indian Contract Act read with Article 265 of the Constitution of India.

(2.) It is the case of the petitioners that they are the purchasers of flats which were constructed by the developer. The developer has raised the invoices on the petitioners to pay the service tax on the value of the flats constructed. The petitioners have paid the service tax on the invoices raised by the developer including the service tax. It is further contended that the petitioners later came to know that they were not required to pay the service tax under law on the construction undertaken by the builder/developer as per the Circular issued by the Central Board of Excise and Customs (hereinafter referred to as 'Board' for short) in No.108/02/2009 dated 29.01.2009. Therefore, the petitioners have preferred applications before the 2nd respondent-Assistant Commissioner of Service Tax against the wrong payment of tax which the department has no authority to collect as per the provisions of the Act and also as per the circular issued by the Board on 012010 as per Annexures-B to B4. The invoices dated 29.10.2010 raised by the developer are hereby produced as per Annexures-H to H4.

(3.) In pursuance of the applications made, the Deputy Commissioner of Service Tax initiated proceedings after issuing notice to the authorities and after considering the entire material on record by an order dated 209.2011 rejected the applications for refund claimed by the petitioners for a sum of Rs. 23,56,162/-. Aggrieved by the said order passed by the Deputy Commissioner of Service Tax, Bangalore, the petitioners filed the appeal before the Commissioner of Central Excise (Appeals-II) as per Annexure-F in Appeal Nos.170-229/2012. The Commissioner of Central Excise (Appeals-II) by order dated 208.2012 rejected the appeals as barred by limitation on the ground of delay varying from 2 months to 4 months 22 days in preferring the appeals.