Decided on January 27,2015

Ind Swift Lands Ltd. Appellant
Commissioner of C. Ex. And S.T. Respondents


Ashok Jindal, Member (J) - (1.)THE appellant is in appeal against the impugned order rejecting their refund claim as time -barred as well as appellant has failed to pass bar of unjust enrichment. The facts of the case are that appellant is engaged in the activity of construction of residential flats. During the period July, 2006 to July, 2008, there was a dispute going on between the appellant and the C.B.E. & C. to clarify whether the activity of construction of residential flats which are ultimately sold to the buyers is a transaction of sale of goods or rendering the services. The said dispute was settled in the year 2008. Thereafter on 5 -9 -2008, the appellant filed the refund claim of Service Tax paid by then 'under protest' during the impugned order. A show cause notice was issued to the appellant to deny the refund claim on merits as well as on limitation and on the ground of unjust enrichment. The adjudication took place on merits. It was held that appellant are entitled for refund claim but it was held that refund claim is barred by limitation and appellant has failed to pass the bar of unjust enrichment by both the lower authorities. Therefore, appellant is before me.
(2.)LEARNED Counsel appearing for the appellant submits that as they sought clarification from the C.B.E. & C. by letter dated 7 -6 -2006 intimating that they are builder who entered into an agreement with the prospective buyer of a flat in a residential complex and clearly mentioned that departmental authorities are pressuring the appellant to deposit the Service Tax and also mentioned to the concerned AC vide their letter dated 7 -6 -2006 that they are depositing the Service Tax under the pressure of department. He further submits that there was no prescribed form to deposit Service Tax 'under protest' in the Finance Act, 1994. In these circumstances, the letters written by the appellant shows that appellant has paid the Service Tax 'under protest'. Therefore, the time -limit prescribed under Section 11B of the Central Excise Act, 1944 is not applicable. He further submits that they also intimated the ultimate buyers of the flats that they are paying the present Service Tax from their pocket till dispute is going on with the appellant and the C.B.E. & C. For the said Service Tax which is payable by the appellant, shall be charged separately and instalments of cost of flat is being recovered from them. He further submits that said fact has been certified by Chartered Accountant by issuing a certificate and amount of refund is reflected in their balance sheet. Therefore, they have discharged their burden of unjust enrichment. In these circumstances, they are entitled for refund claim.
On the other hand, learned AR reiterated the finding of the impugned order and submits that Commissioner has rejected the refund claim rightly by relying on the decision of Indian Oil tanking Ltd. v. CST, Mumbai [ : 2012 (26) S.T.R. 50 (Tri. -Mum.)].

(3.)HEARD the parties. Considered the submissions.

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