Servicetax refund-residential apartment-bangalore

This is with reference to the above captioned subject

there are about 100 people those who have purchased the appartments have paid the service tax to the service tax Department through the developer in 2007-08 & 2008 – 09, based on the demand given by the developer. The developer also has deposited the service tax to the government. Later, there was a clarification through a Govt. circular that the service tax in connecting with the construction of residential complex is not applicable. Based on this service tax position prior to 1st july 2010 reg, there is a clarification which i could able to find out thru website issued by Commissioner of Central Excise, Pune-III, Trade Facility No. 1/2011, dated 15-2-2011 stating that

With effect from 1-7-2010 (the Finance Act, 2010), an explanation has been inserted below sub-clause (zzzh) of section 65(105) to clarify that unless the entire consideration for the property is paid after the completion of construction (i.e. after issuance of completion certificate by the competent authority), the activity of construction would be deemed to be a taxable service provided by the builder/promoter/developer to the prospective buyer and the service tax would be charged accordingly .
And he clarifies that:
(a) Where services of construction of Residential Complex were rendered prior to 1-7-2010 no Service Tax is leviable in terms of para 3 of Boards Circular number 108/02/2009-S.T., dated 29-1-2009. The Service of Construction of Residential Complex would attract service tax from 1-7-2010. Despite no service tax liability, if any amount has been collected by the builder as "Service Tax" for Services rendered prior to 1-7-2010, the same is required to be deposited by the builder to the Service tax department. Builder can not retain the amount collected as Service Tax.
(b) For services rendered after 1-7-2010 for which payment has been or is made after 1-7-2010, service tax is leviable and builder is liable to deposit the service tax to the service tax department. The only exception to this is provided within the parenthesis () in the "Explanation" in para 3.
(c) For services rendered after 1-7-2010 for which payment was made prior to 1-7-2010, service tax has been exempted by the Govt. based on documentary evidence vide notification no. 36/2010-S.T., dated 28-6-2010 as amended. Therefore, this benefit can be availed by builders on the basis of documentary evidence.

Commissioner of Central Excise, Pune-III, Trade Facility No. 1/2011, dated 15-2-2011

 

based on this I had submitted all the papers to the Service Tax commissioner's office at Lalbaugh road seeking refund of Service tax paid through the builder.

I was called for a personal hearing and could meet Shri C V Mohan Kumar, Assistant Commissioner, Service Tax, Bangalore, two weeks ago. On 31.10.2011 I have received an order rejecting the refund claim filed by me on the grounds that -
 

".....from the above documents it is clear the Right , Title and interest in land and construction will remain with the Vendors/builder/developer until the delivery of possession of the residential unit. The developer has to hand over the ready build flat to the purchaser after undertaking all the services that go in completionj of the habitable flat. The activity of building a residential unit oin an earmarked plot in the complex and making construction there on as per the plan, design and specifications, obtaining various permissions and providing amenities as contemplated by various clauses of the agreements entered into, apart from the provisionn of common infrastructural facilities before handing over the building to the customers would undoubtedly constitute 'SERVICE PROVIDED OR TO BE PROVIDED" by the developer."............."In the construction and allied services, what must be noted is referable to the agreement with the prospective buyer and cannot be viewed in isolation...I am of the opinion that Board's circlar No.108/02/2009 dated 29.01.2009 is not applicable in the instant case."...."the services rendered viz. construction services by the Developer are taxable under Sectiion 65 (105) (zzzh) of Finance Act 1994 .......I hereby reject the refund claim of Rs.....under Section 11B of Central Excise Act 1944 which is made applicable to Refund of Service Tax under Section 83 of Financing Act 1994".



I have also been intimated that an appeal must be filed within 3 months from the date of communication of the Order.
 

Please help how to file aappeal
 

Regards