2023 (3) TMI 1012

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....te is time barred under Section 11A . (iii) Whether the refund of service tax paid on vacant land is hit by mischief of unjust enrichment. 02. Shri Hardik Modh, learned counsel appearing on behalf of the appellant submits that there is no dispute that the land which was given on rent is a vacant land. Merely, because it is surrounded by boundary wall, it does not lose the character of vacant land. He referred to the definition of immovable property under the category of Renting of Immovable property service wherein, he pointed out that the vacant land is falling under exclusion category therefore, the same is not taxable. As regard the part of the refund rejected on time bar, he submits that since there was no levy of service ta....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ri Prakash Kumar Singh, learned Superintendent (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. He also filed a compilation of following judgments:- • PATEL CONSTRUCTION COMPANY- 2017 (50) S.T.R. 257 (Guj.) • ASSISTANT COLLR. OF CUS.- 1997 (90) E.L.T. 260 (S.C.) • XL TELECOM LTD.- 2006 (206) E.L.T. 303 (Tri.-Bang.) • SHUBH TIMB STEELS LIMITED- 2010 (20) S.T.R. 737 (P & H) • HERANBA IND. LTD.- 2022 (65) GSTL 84 (Tri-Ahmd) • COMEXX vs. CST, AHMEDABAD- A/10859/2020 dated 18.03.2020 04. We have carefully considered the submission made by both the sides and perused the records. We now deal all the three issues one by one. As rega....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....arly justifies that even though such vacant land having facilities merely incidental to the use of such vacant land also falls under the exclusion category. As per the facts of the present case, on the vacant land there is only boundary wall which can be categorized as a facility incidental to use of such vacant land therefore, even though the land is surrounded by boundary wall, it fall under the term "Vacant land" provided in the definition of immovable property therefore, we are of the considered view that as per the facts of the present case, the vacant land is not liable for service tax being excluded from definition of immovable property. 4.1 As regard the refund of service tax paid on such vacant land, there are two issues, one is....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ns and perusal of records, we find that the appellant have collected the service tax as follows:- Month Rent Service Tax ST Rate Total Rent   Less TDS Rate Cheque Date of          As Agreed in agree- ment   TDS   Amount Cr.in Bank Apr.07 22100     221000   45526 20.60     May 07 22100     221000   45526 20.60     June 07 22100     221000   45526 20.60 663000 04.12.06 July 07 22100     221000   45526 20....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....50   52355 20.60 201795 13.10.08 Nov.08 226193 27957 12.36% 254150   52355 20.60 201795 20.12.08 Dec.08 226193 27957 12.36% 254150   52355 20.60     Jan.09 226193 27957 12.36% 254150   52355 20.60 403590 29.01.09 Feb.09 226193 27957 12.36% 254150   52355 20.60 201795 27.02.09 Mar.09 226193 27957 12.36% 254150   52355 20.60 201795 03.04.09 Apr.09 230417 23733 10.30% 254150   52355 20.60 201795 27.04.09 May 09 230417 23733 10.30% 254150   52355 20.60 201795 18.05.09 Jun....