COMMISSIONER OF SERVICE TAX Vs. SUJAL DEVELOPERS

JUDGEMENT

(1.) In this appeal under section 35G of the Central Excise Act, 1944 (the Act), the appellant, Commissioner of Service Tax, Ahmedabad, has challenged the order dated July 3, 2009, made by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal), proposing to formulate the following two questions:

(2.) The respondent-Sujal Developers, a partnership firm which is engaged in construction activities, entered into an agreement with Saket III Co-operative Housing Society (hereinafter referred to as, "the society") for development of a piece of land owned by the society on April 21, 2005. In relation to development of the said land, the respondent paid service tax in the category of "construction of complex" for various periods. The present appeal pertains to the service tax paid for the period October 1, 2005 to October 31, 2005. Later on the respondent filed a refund claim on January 4, 2007 for Rs. 74,970 for the said period, contending that the services rendered by the petitioner did not amount to construction services in respect of residential complex services under the Finance Act, 1994 (the Act).

(3.) Pursuant to the refund application, a show-cause notice came to be issued to the claimant/respondent as to why: (A) the entire claim of Rs. 74,970 should not be rejected under section 11B of the Central Excise Act, 1944 read with relevant provisions and section 83 of the Finance Act, 1994 as the said amount was towards liability of service provided for the category of "construction services" in respect of "residential complex service" as defined under section 65(105)(zzq) of the Finance Act, 1994; and (B) any amount of service tax if sanctioned as refund should not be deposited in the Consumer Welfare Fund by invoking the provisions of "unjust enrichment" as per section 11B of the Central Excise Act, 1944 read with relevant provisions and section 83 of the Finance Act, 1994. The said show-cause notice culminated into an order in-original dated December 31, 2007, whereby the adjudicating authority rejected the refund claim of Rs. 74,970 filed by the respondent. Being aggrieved, the respondent went in appeal to the Commissioner (Appeals), who vide an order dated October 15, 2008, dismissed the appeal and upheld the order of the adjudicating authority. The respondent carried the matter in second appeal before the Tribunal and succeeded.