Lalit Mohan Garg vs C.C. C.Ex. & S.Tax , Indore

Arising out of the order in appeal No.IND/CEX/000/APP/338,339/11 dated 11.8.2011 passed by the Commissioner , Customs & Central Excise (Appeals), Indore.

For approval and signature:

Honble Mr. Justice G. Raghuram, President

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

Lalit Mohan Garg  Appellant

Vs.

C.C. C.Ex. & S.Tax , Indore . Respondent

Appearance:

None for the appellant

Present Shri Govind Dixit, A.R. for Respondent/Revenue

Coram: Honble Mr. Justice G. Raghuram, President

Final Order No. 51743/2015

Per Justice G. Raghuram:

The appellant has filed a letter dated 16.5.2015 seeking adjournment of the hearing of the appeal. I am not inclined to grant adjournment of the matter. Heard the ld. A.R. for the Revenue and perused the appeal.

2. This appeal is preferred against the order dated 11.8.2011 passed by the ld. Commissioner (Appeals), Customs, Central Excise and Service Tax, Indore. The lower Appellate authority rejected the appeal and confirmed the order dated 8.3.2011 passed by the primary adjudicating authority whereby a refund claim for Rs.91,040/- filed by the appellant herein was rejected.

3. Relevant facts may be noticed. The appellant purchased land from Kalindi Builder & Developer, Devguradia, Indore District for construction of a residential house for personal use. He thereafter entered into an agreement with M/s Kanlidi Constructions Pvt. Ltd. for construction of the said house. Service tax was remitted by M/s Kalindi Construction Pvt. Ltd. on the basis that it had provided construction of complex (residential complex) service to the appellant. Service tax component of Rs.91,040/- remitted by the builder was reimbursed by the appellant, to M/s Kalindi Constructions Pvt. Ltd. On realizing that construction of independent residential units even where 12 or more units with common amenities are constructed is not exigible to service tax under construction of complex service, the appellant filed a refund claim of the amount reimbursed by him to the Builder M/s Kalindi Constructions Pvt. Ltd., under Section 11B of the Central Excise Act, 1944.

4. The primary Authority rejected the claim for refund on the singular ground that M/s Kanlidi Constructions Pvt. Ltd. had constructed row houses involving common amenities like community hall, parking space, park, lift etc. and had thus provided construction of complex service, as the said expression is defined in Section 65(30a) and (91a) read with Section 65 (105)(zzzh) of the Finance Act, 1994. Aggrieved, the appellant preferred an appeal which was rejected by the ld. Commissioner (Appeals), who concurred with the analyses and the conclusion recorded by the primary Authority.

5. Admittedly and demonstrably M/s Kalindi Constructions Pvt. Ltd. had constructed independent row houses. Even where the number of houses in such arrangement are more than 12, the transaction falls outside the purview of construction of complex service, in view of the decision of this Tribunal in Marco Marvel Projects Ltd. vs. C.S.T., Chennai reported in 2008 (12) STR 603 (Tri-Chennai) and in Magus Construction Pvt. Ltd. vs. UOI reported in 2008 (11) STR 225 (Gau.), the latter being a decision by the Gauhati High Court.

6. In the above circumstances, the order of the primary and the lower appellate Authority cannot be sustained and these are accordingly quashed. The appellant shall be entitled to refund of the amount claimed, in accordance with law. The appeal is allowed. No costs.

(Justice G. Raghuram)

President

scd/

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