Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Online)(CESTAT) 1484

CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
Rachna Gupta, Judicial Member, Hemambika R. Priya, Technical Member
Sandeep Builders – Appellant
Versus
Commissioner of Central GST & Central Excise-Jodhpur – Respondent
Service Tax Appeal No. 51487 Of 2018 | Order-in-Appeal No. 76/CKJ/ST/UDR/2018 | FINAL ORDER No. 50727/2026 | Order-in-Original No. 01/2015

Advocates:
For the Appellants/Petitioners: Om. Prakash Aggarwal
For the Respondents: Shashank Yadav

Refund of service tax on exempt services barred by unjust enrichment if contract inclusive of tax and incidence passed on; refund proceedings cannot modify self-assessments.

Headnote:(A) Finance Act, 1994 - Section 65B(54) - Works Contract Services - Refund of service tax - Construction of roads and interlocking tiles - Claim rejected as roads exempt pre and post 01.07.2012 but hit by unjust enrichment - Contract amount inclusive of service tax borne by contractor - Recipient deducted 50% tax under reverse charge - No evidence adduced to prove incidence not passed on - Doctrine of unjust enrichment applies as taxpayer cannot benefit at exchequer's expense - Refund proceedings are execution proceedings; cannot modify self-assessments - Activities involving material and service for immovable property qualify as works contract; tax correctly paid. (Paras 6, 6.1, 6.2, 6.4)

(B) Unjust Enrichment - Retention of benefit unjust or inequitable - No person can enrich at another's expense - Applies to refund claims; burden on claimant to prove tax not passed on - Contract terms specifying tax borne by contractor and inclusive quoting evidence passing on incidence. (Para 6.1)

(C) Refund Proceedings - Nature of execution; cannot reassess or modify accepted self-assessments - Must follow assessments unless modified via appeal or reassessment - Exemption claims not adjudicable in refund without prior assessment change. (Paras 7-10)

Facts of the case:
Appellant filed refund claim for service tax paid on road construction and related works, asserting exemption as public roads. Department rejected citing works contract taxability and unjust enrichment. Lower authorities upheld rejection for lack of documents and contract terms showing tax inclusive in gross amount with deductions by recipient.

Findings of Court:
Refund claim barred by unjust enrichment due to failure to prove tax incidence not passed on; services correctly classified as works contract; no modification of self-assessments permissible in refund proceedings.

Issues: Whether refund admissible for exempt road construction despite works contract classification; application of unjust enrichment; scope of refund proceedings to reassess taxability.

Ratio Decidendi: Refund claims must pass unjust enrichment test with claimant bearing proof burden; refund cannot alter self-assessments which are final unless appealed; road/tile works using material qualify as works contract.

Result: Appeal dismissed; impugned order upheld.

Table of Content
1. road construction exempt pre-2012, post-2012 via notification. (Para 2)
2. appellant claims road works exempt, no unjust enrichment. (Para 3)
3. department: tax passed on, incomplete documents, unjust enrichment. (Para 4)
4. unjust enrichment bars refund; tax burden passed to recipient. (Para 5 , 6)
5. refund proceedings cannot modify self-assessments. (Para 7 , 8 , 9 , 10)
6. appeal rejected; impugned order upheld. (Para 11)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL New Delhi PRINCIPAL BENCH – COURT NO. 4 Service Tax Appeal No. 51487 Of 2018 [Arising out of Order-in-Appeal No. 76/CKJ/ST/UDR/2018 dated 21.02.2018 passed by the Commissioner (Appeals) of CGST, Udaipur]

Sandeep Builders : Appellant PN 845, Juni Bagar, Maha Mandir Dist. Jodhpur Vs Commissioner of Central GST & : Respondent Central Excise-Jodhpur G-105, New Industrial Area, Basni Near Diesel Shed, Jodhpur-342003 APPEARANCE:

Present for the Appellant : Shri Om. Prakash Aggarwal, Consultant Present for the Respondent: Shri Shashank Yadav, Authorised Representative CORAM :

HON’BLE DR. RACHNA GUPTA, MEMBER (JUDICIAL)

HON’BLE MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL)

FINAL ORDER No. 50727/2026 Date of Hearing:19.03.2026 Date of Decision:16.04.2026 HEMAMBIKA R. PRIYA The present appeal has been filed to assail the impugned Order-

in-Appeal No. 76/CKJ/ST/UDR/2018 dated 21.02.2018 wherein the Commissioner (Appeals) rejected the appeal of M/s Sandeep Builders by upholding the Order-in-Original.

2. The brief facts of the case are that the M/s Sandeep Builders, Jodhpur¹filed a refund claim for Rs. 15,17,965/-on 07.10.2014 on the

1 The appellant ground that construction of all types of roads was not taxable up to 30.06.2012, in view of the exclusion from the category of commercial and industrial construction service'. Such roads, beingpublic roads, with effect from 01.07.2012, public roads were exempted vide Sr.No. 13(a) of Notification no. 25/2012-ST dated 20.06.2012. The Department held the view that the said grounds were not legally tenable and the services provided by the appellant was covered under the category of "Works Contract Services".The construction of residential houses was covered under the category of "Construction Services" which are taxable. Accordingly, a Show Cause Notice dated 23.12.2014 for rejection of the refund claim was issuedby the Department. The said show cause notice was adjudicated vide Order- in-Original No. 01/2015 dated 06.01.2015 by the Adjudicating Authority who rejected the entire refund claim. Being aggrieved, the appellant filed an appeal before the Commissioner (Appeals) who upheld the Order-in-Original and rejected the refund claim. Aggrieved by the said order, the appellant has filed the present appeal.

3. Learned consultant for the appellant submitted that the appellant is pressing for the refund of Rs. 8,67,703/- + Rs. 11,246/- relating to construction of Road and interlocking/chequered tiles as per work orders. Therefore, the appellant was agitating for a refund of Rs. 8,78,949/- out of the total refund claim of Rs. 15,17,965/-. He submitted that construction of road work at EWS 600 (G+3) Dwarka Puri Scheme as per work order no. 1618 dated 15.11.2011 was exempt from tax as the roads were for general public, which was

exempt vide notification no. 25/2012-ST dated 20.06.2012. Learned consultant contended that these submissions would be equally applicable in respect of roads constructed as per work order no. 52 dated 15.04.2013 as this road was also constructed in colonies

developed by Rajasthan Housing Board.

3.1 Learned consultant further submitted that the refund was not hit by unjust enrichment. As per work orders, service tax was to be borne by the appellant. Further, as per work orders, Rajasthan Housing Board had also deducted the service tax payable by them under reverse charge mechanism from the bills raised by the appellant. Hence, the appellant had only borne the incidence of tax. In support of his submissions, learn

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