Page 152 - GSTL_2nd April 2020_Vol 35_Part 1

54 GST LAW TIMES [ Vol. 35
passed by the Assistant Commissioner of Service Tax, Division III, Hyderabad
(1st respondent) refusing the claim of the petitioners for refund of an amount of
Rs. 33,77,539/-, and for a direction to the 1st respondent to refund the same.
2. The petitioners, under a registered Sale Deed dated 9-5-2014, had
purchased office space admeasuring 20,101 sft. along with undivided share of
land admeasuring 492 sq. yards in a complex named as Meenakshi’s Techpark
from M/s. Meenakshi Infrastructure Private Limited (4th respondent) for valua-
ble consideration.
3. The 4th respondent, in addition to the consideration agreed upon, al-
so demanded and received from the petitioners an amount of Rs. 33,77,539/- as
service tax payable in respect of the sale of the said property in their favour on
the ground that such an activity is considered ‘commercial and industrial construc-
tion’ service covered by Section 65(105)(zzq) of Finance Act, 1994 (as amended
from time to time).
4. Petitioners contend that they were initially under a bona fide impres-
sion and belief that the said sale and purchase of the commercial property in-
cluding the undivided share of land is exigible to service tax under the provi-
sions of the said Act and had paid the said amount as demanded by the 4th re-
spondent towards service tax.
5. Petitioners contended that subsequently, they came to know that in
respect of the composite contracts, like the one entered into by the petitioners for
purchase of the immovable property along with goods used therein and also a
part of the undivided land, service tax cannot be levied on composite price as per
the provisions of the Act, inasmuch as the said statute did not contain any mech-
anism to segregate/bifurcate the value of goods and the cost of land from the
gross value for determining the value of service, on which service could be lev-
ied. They relied upon the decision of the High Court of Delhi in the case of Suresh
Kumar Bansal v. Union of India [2016 SCC Online Del. 3657 = 2016 (43) S.T.R. 3
(Del.)].
6. It is contended by the petitioners that the consideration paid by the
petitioners was towards purchase of immovable property included undivided
share of land, and the claim of service tax on such transaction of immovable
property by the respondents would be clearly outside the purview of the service
tax regime as contained in the Act.
7. Petitioners filed an application with the 1st respondent on 19-8-2015
seeking refund of the said amount of Rs. 33,77,539/- from the 1st respondent.
Petitioners enclosed required documents enclosing receipt of payment of service
tax to the 4th respondent and also provided details of 4th respondent along with
it’s Service Tax Registration number and address to enable the 1st respondent to
verify the payment and grant refund to the petitioners.
8. Petitioners had contended in the said application that they are enti-
tled to the refund of service tax paid under mistake of law and the provisions
under Section 11B of Central Excise Act, 1944 would apply to the refund under
the service tax law as well.
9. The 1st respondent passed the impugned order on 24-10-2016 reject-
ing the claim of the petitioners for refund of the above amount on the following
four (4) grounds :

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