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TMI Blog2023 (3) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax being excluded from definition of immovable property. Refund of service tax paid on such vacant land - limitation under Section 11B - unjust enrichment - HELD THAT:- As regard the time limit, the submission of the appellant is that the amount paid is not a service tax as there was no statutory levy on the vacant land therefore, the amount which was paid will not be governed for refund under Section 11B therefore, the limitation of one year provided under Section 11B shall also not apply mutatis mutandis - the appellant have admittedly paid the service tax under the head of service tax of renting of immovable property service and the same was declared in the ST-3 returns as payment of service tax. In this fact, since the amount was admittedly paid as service tax, the refund of service tax shall be governed by Section 11B. The appellant have considered the gross rent as cum tax amount and while paying service tax to arrive at the taxable value, the service tax was excluded which shows that the service tax which was paid by the appellant was included in the gross renting recovered by the appellant if this be so, it is clear evidence that the incidence of the servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.T.L. 8 (Bom.) 3E INFOTECH- 2018 (8) G.S.T.L. 410 (Mad.) JOSHI TECHNOLOGIES INTERNATIONAL- 2016 (339) E.L.T. 21 (Guj.) EVERON PROJECT CONSULTANT LTD.- 2017 (7) G.S.T.L. 465 (Tri.-Chan.) KRISHI UPAJ MANDI SAMITI- 2020 (43) G.S.T.L. 204 (Tri.-Del.) SICAL DISTRIPARKS LTD.- 2012 (28) S.T.R. 525 (Commr. Appl.) MORMUGAO PORT TRUST- 2016 (45) S.T.R. 469 (Tri.-Mumbai) ROLEX RINGS PVT. LTD.- 2019 (25) GSTL 398 (T) Way2welath Brokers Pvt. Ltd.- 2022 (61) GSTL 349 (Kar.) 03. Shri 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 regard the issue tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory levy on the vacant land therefore, the amount which was paid will not be governed for refund under Section 11B therefore, the limitation of one year provided under Section 11B shall also not apply mutatis mutandis. We find that the appellant have admittedly paid the service tax under the head of service tax of renting of immovable property service and the same was declared in the ST-3 returns as payment of service tax. In this fact, since the amount was admittedly paid as service tax, the refund of service tax shall be governed by Section 11B. 4.2 As regard the judgments relied upon by learned counsel on the issue of limitation, we find that the jurisdictional High Court of Gujarat in the case of PATEL CONSTRUCTION COMPANY (supra) has held that the relief claimed by the petitioner in seeking direction to the adjudicating authority to condone delay in filing refund claim is contrary to statutes accordingly, the petition was dismissed. We find that this judgment of Hon ble Gujarat High Court being binding as a judgment of jurisdictional high Court, we following the same are of the view that the limitation of one year is clearly applicable in the case of refund of service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.07 Dec.07 196689 24311 12.36% 221000 45526 20.60 175474 22.01.08 Jan.08 226193 27957 12.36% 254150 15% increased from this month 52355 20.60 201795 22.01.08 Feb.08 226193 27957 12.36% 254150 52355 20.60 Mar.08 226193 27957 12.36% 254150 52355 20.60 403590 12.03.08 Apr.08 226193 27957 12.36% 254150 52355 20.60 201795 01.04.08 May 08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 June 09 230417 23733 10.30% 254150 52355 20.60 201795 18.06.09 July 09 230417 23733 10.30% 254150 52355 20.60 201795 23.07.09 Aug. 09 230417 23733 10.30% 254150 52355 20.60 201795 07.09.09 Sep. 09 230417 23733 10.30 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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