Residential Complex Service Case Study

FACTS OF THE CASE
The brief facts of the case are: The petitioner, M/s. KVR Construction (Assessee) is a construction/development organization rendering services/administrations under classification of "Development of Residential Complex Service" and are paying the Service Tax as per Finance Act, 1994. They are construct some buildings for Shri Adichunchanagiri Shikshana Seva Trust by virtue of an agreement dated 7-12-2004:
(a) Medical college
(b) AIMS Hospital
(c) SJBIT Engineering college
(d) SJBIT Engineering Boys Hostel
The case pertains to Claim for refund of service tax paid by the Assessee who found that he was not accountable to pay tax in light of Circular No. 80/10/2004, dated 17-9-2004 since it constructed civil structures which
According to the Department, once the duty is paid under service tax, the limitation period of Central Excise Act comes into play. Therefore, any amount that has to be refunded has to be in accordance with Section 11B of Central Excise Act, irrespective of the nature of the tax paid, and the refund has to be only under Section 11B of the Act. Hence, the appellant contends that unless, the refund claim is made within the time period given in Section 11B of the Act, the respondent could not have had the benefit of refund of the amount.
2. According to the Appellant, assessee paid the money as a service tax mentioned under Finance Act, 1994 and also for his claim assessee filled the Form- R given in Central Excise Act. All these situations clearly indicates that the assessee was claimed the refund of the money under section 11B of central excise act and therefore it’s not open for him to do a reversal and claim that it was not refund of duty.
ARGUMENTS ON BEHALF OF THE RESPONDENT
Respondent contends that as long as the amount paid by the respondent was an amount leviable and collected in accordance with the procedure, then Section 11B, Central Excise Act has applied and if once the amount paid by the respondent is exterior to the purview of Section 11B of the Act, none of the requirements of Section 11B under the Central Excise Act including time limit would apply and therefore amounts in question were paid under mistake and as such it cannot be construed as duty paid. In view of the same, he contends, Section 11B of the Act is not at all attracted in the present case. Respondent said that unless the authority to levy and collect tax in question lies with the department, the amounts paid by the respondent could not be termed as claim for refund of duty as contemplated under Section 11B of the Act.
2. According to Respondents, Rs. 1,24,38,991/- were paid under a false impression that they were legally responsible to pay service tax and the sum of money claim by them was not charged by them and gathered from the individual to whom they rendered service. At the end of the day, as indicated by respondents, they have paid the above said sums under a false idea that they were accountable for pay service tax despite the fact that they are not at accountable to pay by uprightness of notification dated 17-9-2004 and in like manner looked for refund of the said