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May 2008

Construction of Residential Complex Service

By Puloma Dalal, Bakul B. Mody, Chartered Accountants
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II. Tribunal :


1. Construction of Residential Complex Service :


Findings of adjudicating authority not challenged by the
applicant.


Mokha Builders and Promoters v. CCE, Bhopal (2008 TIOL
547 CESTAT DEL)

â The appellant, a
builder, paid service tax under Construction of Complex Service and filed a
refund application on the ground of non-taxability of service. Refund claim was
rejected by the lower authority as well as by the Appellate authority. Appellant
contended that they being builders were not liable for service tax and unjust
enrichment did not arise as they did not collect service tax. However, they did
not challenge the findings of the adjudicating authority that agreement for sale
of flat was entered into prior to construction of flat and the appellant
constructed the flat. The Tribunal rejected the appeal on the ground that
findings of the adjudicating authority was not challenged by the applicant.


Further, on issue of unjust-enrichment, the appellant’s
contention that service tax was not collected from purchasers of flat was proved
false, as sale deed with customer mentioned that service tax would be paid by
the purchasers of flat.

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