2022 (6) TMI 916 - AT - Service Tax

Refund of service tax paid, which was not required to be paid - services provided in relation to sports stadium - commercial or industrial construction service - Providing and fixing of seating system - Laying of Synthetic athletic track - nature of civil structure is not of commercial - principles of unjust enrichment - time limitation - HELD THAT - The service of providing and laying of Synthetic Athletic Track has been provided in respect of sports organization of Government, Centre or State. It has been argued by the appellant that the service provided by them is squarely covered by the description of services given in a commercial and industrial construction service as defined in Section 65 (25b), however, since the said services are provided to Government facilities which are not of commercial nature, the same do not fall under the category of commercial or industrial construction services as defined in Section 65 (25b) - It is seen that the installation of chairs in a stadium would clearly be an activity similar to the activity of acoustic application or fittings or of the nature of fencing and railing. In that sense the activity of fixing chairs in a commercial establishment would be covered the description of service in the commercial or industrial construction service as defined in Section 65 (25b). The activity of laying of Synthetic Athletic Track Surface is akin to the activity of floor and wall tiling, wall covering and wall papering. The activity is of civil nature and, therefore, would be covered by the activities described in the definition of commercial or industrial construction service, however, since the same have been provided in respect of sport facilities owned by Government, State or Centre, the same would not be chargeable to tax. It is seen from the impugned order that since it was held that no refund is admissible, the ground of unjust enrichment as well as limitation were not examined - Since the issue of unjust enrichment, limitation and the implication of the decision of Apex Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV 2019 (9) TMI 802 - SUPREME COURT has not been examined by the lower authorities, its needs to be sent back to original Adjudicating Authority. In so far as the taxability of service provided is concerned it is held that the services provided by the appellant are not taxable. For decision on the other issues, the matter is remanded back to the original Adjudicating Authority - Appeal allowed in part.

Summary

Issues involved:
1. Classification of services provided by the appellant under the category of commercial or industrial construction service.
2. Eligibility of refund claims filed by the appellant.
3. Application of unjust enrichment and limitation clauses.
4. Challenge to self-assessment by the appellant.

Issue 1: Classification of services under commercial or industrial construction service:
The appellant argued that the services provided, such as fixing seating arrangement in a stadium and laying Synthetic Athletic Track Surface, should fall under commercial or industrial construction service. However, since these services were provided to non-commercial government facilities, they contended that no service tax should be levied. The Tribunal analyzed the definition of commercial or industrial construction service, noting that activities like fixing chairs in a stadium could be considered similar to services covered under this category. The Tribunal referred to a previous case where it was held that services provided for non-commercial sports facilities owned by the State would not be taxable under commercial or industrial construction service.

Issue 2: Eligibility of refund claims:
The appellant had filed refund claims on the grounds that no service tax was payable by them. They argued that the services provided were not taxable under commercial or industrial construction service due to the non-commercial nature of the structures. The Tribunal found merit in this argument and held that the services provided by the appellant were not taxable. However, other issues such as unjust enrichment and limitation were not examined in the original order, leading to a remand back to the original Adjudicating Authority for further consideration.

Issue 3: Application of unjust enrichment and limitation clauses:
The Authorized Representative pointed out that the refund claim was hit by the unjust enrichment clause and limitation. Additionally, the issue of self-assessment and failure to challenge the assessment order by the appellant was raised, citing a decision of the Apex Court. The Tribunal noted that these issues were not addressed in the original order and decided to remand the matter back to the original Adjudicating Authority for a thorough examination.

Issue 4: Challenge to self-assessment:
The appellant had classified the services as erection, commissioning, and installation services. The Authorized Representative highlighted the absence of a challenge to the self-assessment by the appellant and referred to a decision of the Apex Court. The Tribunal acknowledged this legal issue and decided to remand the case for further examination by the original Adjudicating Authority.

In conclusion, the Tribunal partly allowed the appeal by holding that the services provided by the appellant were not taxable under commercial or industrial construction service. However, the issues of unjust enrichment, limitation, and self-assessment challenge were not addressed in the original order and were remanded back for detailed consideration.