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Service Tax Refund 2016-VIL-62-CESTAT-DEL

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Service Tax – Refund - builders/ promoters - discharge of burden to establishing that the burden of tax was not passed on – refund denied on ground of unjust enrichment – payment of service tax under industrial construction service

HELD - The Commissioner (Appeals) has held that the appellant was not promoter/builder of residential complex only on the ground that the appellant made payment of service tax under industrial construction service and not under residential complex service - payment of service tax under code number assigned to Industrial Construction Service cannot be a clinching evidence to discard the assertion of the appellant that it was promoter/builder of residential complex

The impugned service tax was paid for the months of August and September, 2006 and as has been also held by Supreme Court in the case of CCE Vs M/s L&T Ltd. no service tax was payable on the service rendered under works contracts prior to 1.6.2007. It is immaterial that the service provider was not registered under VAT because evasion of VAT would not automatically lead to liability to service tax - the amount of service tax of which refund was sought was indeed not payable by the appellant

Appeal allowed by way of remand for purpose of considering discharge of burden to demonstrate that the burden of impugned service tax was not passed on

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