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2024 (1) TMI 252 - CESTAT AHMEDABADClassification of services - Erection Commissioning and Installation Service or construction service - Refund of tax paid - tax paid under mistake of law - applicability of provisions of section 11B of CEA. Classification of services - HELD THAT:- The Commercial or Industrial Construction Service includes within its scope construction of a new building or a civil structure or a part thereof. Construction of rooms for educational institutions would ordinarily be covered under the description of construction of new building or a civil structure or a part thereof. In that sense, ordinarily Erection, Commissioning or Installation of rooms would fall under the category of construction of new building or a civil structure or part thereof. The said activity would become taxable only if the same is 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:- 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 - 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.
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