CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL BANGALORE REGIONAL BENCH - COURT NO. 2 Service Tax Appeal No. 21393 of 2015 (Arising out of Order-in-Appeal No. COC-EXCUS-000-APP-019 to 021-15-16 dated 28.04.2015 passed by the Commissioner of Central Excise, Customs & Service Tax (Appeals), Cochin.)

Sree Chakra Living Space Govind, XXI/270, Chinmaya Road, Tripunithura, Kerala. ..........Appellant(s)

VERSUS Commissioner of Central Excise, Customs and Service Tax, C R Building, I S press Road, Ernakulam, Cochin, Kerala - 682018 ......Respondent(s)

APPEARANCE:

Mr. K. Hariharan, Chartered Accountant (CA) for the Appellant Mr. Rajashekar B.N.N, Superintendent (AR) for the Respondent CORAM:

Hon'ble Mr. P. A. Augustian, Member (Judicial)

Hon'ble Mr. Pullela Nageswara Rao, Member (Technical)

Final Order No. 20582 /2026 Date of Hearing: 03.03.2026 Date of Decision: 28.04.2026 Per: Pullela Nageswara Rao This appeal is filed against Order-in-Appeal No. COC-EXCUS-000-

APP-019 to 021-15-16 dated 28.04.2015 passed by the Commissioner of Central Excise, Customs & Service Tax (Appeals), Cochin.

2. The brief facts of the case are, the appellant M/s. Sree Chakra Living Space is a builder and developer in Cochin engaged in construction and selling of residential flats and is registered under "construction of complex service". The appellant enters into agreements with prospective customers for construction of dwelling units in a residential complex being composite contracts of construction involving supply of goods and services.

3. Details of the appeal are as under;

4. The above appeal is filed against a combined Orders-in-Appeal dated 28.4.2015 passed by Commissioner (Appeals), Cochin.

5. The issues involved in the present appeal for consideration are whether:-

a) the services under dispute classified as "construction of complex service" as per section 65 (105) (zzzh) of the Finance Act, 1994 are exempt from service tax during the relevant period. b) the refund claim of Rs. 9,19,768/- filed on 18.08.2009 is within the time limit as per section 11 B of the Central Excise Act, 1944 and also attract unjust enrichment provision in view of the clause 11 of the agreement with customers which provides that all taxes should be borne by the clients.

6. The learned Adjudicating Authority vide Orders-in-Original 30.10.2009, rejected the refund claim of Rs. 9,19,768/- based on merits, unjust enrichment and limitation. On merits the refund was rejected on the ground that the appellant is not entitled to exemption as per Circular No. 108/02/2009-ST dated 29.01.2009 and that the appellant is not the actual owner of the properties and they have only possessory right to develop the land and construction of the building, therefore the service rendered by the appellant cannot be considered as self-service, hence the exemption in terms of the Board Circular No. 108/02/2009-ST dated 29.01.2009 cannot be extended to the appellant. Aggrieved by the Order-in-Original dated 30.10.2009 appellant filed an appeal before Commissioner (Appeals), who vide the common impugned order dated 28.04.2015, dismissed the appeal of the Appellant and upheld the Order-in-Original. Aggrieved by the impugned order appellant filed this appeal before this Tribunal.

7. The learned Chartered Accountant (CA) for the appellant during the hearing as regards the applicability of Circular No. 108/02/2009-ST dated 29.01.2009, submits that; the Hon'ble Bangalore Tribunal and other benches have held that builders and developers are not liable for payment of service tax under 'construction of complex' services for the period up to 01.07.2010 based on the Circular No. 108/02/2009-ST dated 29.01.2009 and 151/2/2012-ST dated 10.02.2012 and also as per the amendment to section 65(105) (zzzh) by the insertion of explanation from 01.07.2010, the relevant decisions are as below:

I. Skyline Builders (Trivandrum) Vs. Commissioner, Trivandrum-2025-TIOL-996-CESTAT-Bang-Final Order No. 20511/2025 dated 01.04.2025 II. CCE & ST