Page 151 - GSTL_2nd April 2020_Vol 35_Part 1

2020 ] VASUDHA BOMMIREDDY v. ASSISTANT COMMR. OF S.T., HYDERABAD 53
Refund claim - Rejection of - Payment of Service Tax under mistake of
law - Impugned order rejecting refund claim for Service Tax paid on transac-
tion of purchase of constructed area along with goods apart from undivided
share of land on the basis of decision of Delhi High Court in G.D. Builders
[2013 (32) S.T.R. 673 (Del.)] - Said decision overruled by Supreme Court in
Larsen and Toubro Limited [2015 (39) S.T.R. 913 (S.C.)] specifically - Hence,
impugned ground of rejection of claim, cannot be accepted - Section 11B of
Central Excise Act, 1944 as applicable to Service Tax vide Section 83 of Finance
Act, 1994. [paras 23, 24]
Valuation (Service Tax) - Composite contracts - Purchase of commer-
cial property including undivided share of land along with goods used therein
- Levy under Section 66E of Finance Act, 1994 and Section 67 ibid read with
Rule 2A of Service Tax (Determination of Value) Rules, 2006 [as amended by
Service Tax (Determination of Value) (2nd Amendment) Rules, 2012 w.e.f. 1-7-
2012] - HELD : Rule 2A of Service Tax (Determination of Value) Rules, 2006
deals only with determination of value of service portion in execution of
works contract referred to in clause (h) of Section 66E ibid - No rule enacted by
Central Government dealing with determination of value of service portion in
composite contract of sale involving not only service component but also sale
of built up area along with undivided share of land involving also sale of
goods included in total consideration paid for purchase falling in clause (b) of
Section 66E ibid, as in instant case - Delhi High Court’s judgment in Suresh
Kumar Bansal [2016 (43) S.T.R. 3 (Del.)], followed - Sections 66E and 67 ibid
read with Rule 2A of Service Tax (Determination of Value) Rules, 2006 [as
amended by Service Tax (Determination of Value) (2nd Amendment) Rules,
2012 w.e.f. 1-7-2012]. [paras 25, 26, 27, 28, 29, 30, 31, 32, 33, 34]
Writ Petition - Maintainability of - Assessee seeking refund of amount
collected as Service Tax without authority of law - Article 265 of Constitution
of India states that ‘no tax shall be levied or collected except by authority of
law’ - In instant case, there are no disputed questions of fact that need to be
gone into for deciding claim for refund - Claim for refund based on decision of
Delhi High Court in Suresh Kumar Bansal’s case - Since application for refund
filed, barely two months after said decision, it cannot be said that there is any
inordinate delay in petitioners seeking refund of tax paid - Respondent di-
rected to refund amount with interest - Article 226 Constitution of India. [paras
35, 36, 37, 38]
Petition allowed
CASES CITED
Commissioner v. K.V.R. Construction — 2012 (26) S.T.R. 195 (Kar.) — Relied on ......................... [Para 17]
Commissioner v. Larsen & Toubro Ltd. — 2015 (39) S.T.R. 913 (S.C.) — Followed ....................... [Para 23]
Corporation Bank v. Saraswati Abharansala — 2010 (18) S.T.R. 513 (S.C.) — Relied on ............... [Para 36]
G.D. Builders v. Union of India — 2013 (32) S.T.R. 673 (Del.) — Distinguished .................... [Paras 9, 23]
Natraj and Venkat Associates v. Assistant Commissioner
— 2010 (249) E.L.T. 337 (Mad.) — Relied on ....................................................................... [Paras 15, 16]
Union of India v. Suresh Kumar Bansal — 2016 (43) S.T.R. 3 (Del.) — Followed ............... [Paras 5, 32, 37]
DEPARTMENTAL CLARIFICATION CITED
C.B.E. & C. Circular No. 80/10/2004-S.T., dated 17-9-2004 .............................................................. [Para 17]
[Order per : M.S. Ramachandra Rao, J.]. - In this Writ Petition, petition-
ers assail the Order-in-Original No. 49/2016 (Service Tax) (R), dated 24-10-2016
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