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TMI Blog2014 (1) TMI 1941X X X X Extracts X X X X X X X X Extracts X X X X ..... provided for use for Commerce or Industries. In the instant case, there is no dispute that the said rooms were not used for commerce/ industry and therefore, the appellant s service could not be classified under the head of Commerce or Industrial Construction Service. In view of above, it is clear that the tax has been paid wrongly. Applicability of provisions of Section 11B to the refund claim - HELD THAT:- Hon ble Apex Court in MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [ 1996 (12) TMI 50 - SUPREME COURT] has clearly underlined that unless tax has been collected under a provision which has been held to be unconstitutional in the appellant s own case all refunds would be covered by Section 11B of the Central Excise Act or Section 27 of the Customs Act, 1962. In view of above, the decisions cited by the appellant cannot be applied to the instant case, therefore, the provisions of unjust enrichment as provided under Section 11B become applicable to the case. The appeal filed by the Revenue as well as the appeal filed by the Sintex BAPL Limited are dismissed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice only. He argued that the Circular dated 15.09.2009 does not apply to service provided under the head of Erection, Commissioning and Installation Services. 5. We have considered the rival submissions. We find that the following issues are before us: i) If the service provided by the SBL is chargeable to service tax or otherwise. ii) If the provisions of section 11B are applicable in case it is held that no service tax was chargeable on the services provided by SBL. 6. It is seen that the Commissioner (Appeals) has observed as follows while granting relief. The services provided by the appellant is to the educational institute, state/central/semi government bodies which are generally not meant for commerce or industry. The basic principle for levy service tax is that services provided should be commercial in nature intended for commerce or industry. Though the Board has superseded all previous circulars, clarifications etc. vide circular dated 23.08.2007, the basic principle for levy of service tax remains the same i.e. wherever the services provided in non commercial in nature and not for commerce or industry, no service tax can be levied irrespective of its cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng it still needs to be classified under the category of construction service. The definition of Erection Commissioning/ Installation Service as provided under Section 65 (39A) reads as under:- erection, commissioning or installation means any service provided by a commissioning and installation agency, in relation to, (i) erection, commissioning or installation of plant, 50[machinery, equipment or structures, whether pre-fabricated or otherwise]; or (ii) installation of (a) electrical and electronic devices, including wirings or fittings therefor; or (b) plumbing, drain laying or other installations for transport of fluids; or (c) heating, ventilation or air-conditioning including related pipe work, ductwork and sheet metal work; or (d) thermal insulation, sound insulation, fire proofing or water proofing; or (e) lift and escalator, fire escape staircases or travelators; or (f) such other similar services;] The definition of Commerce or Industrial Construction Service under Section 65 (25b) of the Finance Act reads as under:- 65(25b) [ commercial or industrial construction ] means a) construction of a new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd issue relates to applicability of provisions of Section 11B to the refund claim. The SBL has relied on following decisions: Natraj and Venkat Associates vs Assistant Commissioner, Service Tax 2009 (10) TMI 36 Madras High Court Joshi Technologies International, Inc India Projects vs UOI 2016 (6) TMI 773 Gujarat High Court 10. Revenue has essentially relied on the decisions of Hon ble Apex Court in the case of Mafatlal Industries Limited 1997 (89) ELT 247 (SC). In para 99 of the decision of Hon ble Apex Court following has been observed: .. Where (i) a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff - whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter - by mis-interpreting or mis-applying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by mis-interpreting or mis-applying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a writ petition. This principle is, however, subject to an exception : where a person approaches the High Court or Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be re-opened on the basis of a decision on another person s case; this is the ratio of the opinion of Hidayatullah, CJ. in Tilokchand Motichand and we respectfully agree with it. Such a claim is maintainable both by virtue of the declaration contained in Article 265 of the Constitution of India and also by virtue of Section 72 of the Contract Act. In such cases, period of limitation would naturally be calculated taking into account the principle underlying Clause (c) of sub-section (1) of Section 17 of the Limitation Act, 1963. A refund claim in such a situation cannot be governed by the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be, since the enactments do not contemplate any of their provisions being struck down and a refund claim arisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment of levy has become final in his case, he cannot seek to reopen it nor can he claim refund without re-opening such assessment/order on the ground of a decision in another person s case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund. (v) Article 265 of the Constitution has to be construed in the light of the goal and the ideals set out in the Preamble to the Constitution and in Articles 38 and 39 thereof. The concept of economic justice demands that in the case of indirect taxes Central Excises duties and Customs duties, the tax collected without the authority of law shall not be refunded to the petitioner-plaintiff unless he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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