The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) observed that the Construction of School Rooms not classifiable under Commerce or Industrial Construction Service and held that unjust enrichment is applicable in the present case.
M/s Sintex BAPL Ltd ( SBL ) had filed a refund claim of Rs. 1,45,53,618/- for the period March 2011 to November 2011 on the grounds that they had paid the service tax for providing the construction services of building of structures of government and semi government organizations involved in providing education or health services.
During the scrutiny of refund claim, it was found that the said tax was payable under the category of erection and commissioning/ installation or pre-fabricated building. It was also noticed by the Revenue that during the period October 2010 to November 2011 no tax was paid under the head of construction service. The said refund claim was rejected by the original adjudicating authority both on the ground of merit as well as unjust enrichment.
The counsel for SBL has argued that in the instant case, no tax was payable and the tax was paid under mistake of law and therefore, provisions of section 11B are not applicable.
The Authorized Representative relied on the grounds of appeal and pointed out that Circular No. 116/10/2009-ST dated 15.09.2009 which has been relied by the Commissioner ( Appeals ) has been issued in respect of the ― Commercial or Industrial Construction Service only. The counsel argued that the Circular dated 15.09.2009 does not apply to service provided under the head of Erection, Commissioning and Installation Services.
A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “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.”
“It is noticed that Apex 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 Tribunal concluded.
Subscribe Taxscan Premium to view the JudgmentSupport our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates
