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2016 (3) TMI 832

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..... ax - Undue enrichment - Held that:- the payment of service tax has not been made by the numerous consumers and collected by the petitioner. It is paid by the petitioner alone. The petitioner is entitled for the reimbursement of the amount of service tax by respondent No. 4 in terms of the letter of award of contract. Such payment of service tax by the petitioner is not indirect collection of taxes but the direct payment by the petitioner. Therefore, it is not a case of undue enrichment. Thus, since the levy as collection of service tax paid by the petitioner or respondent No.4, has not been found to be justified, therefore, the respondent No. 1 shall refund the amount of the service tax deposited either to the petitioner or respondent No. 4, as the case may be, expeditiously. - Decided in favour of petitioner - Civil Writ Jurisdiction Case No.16965 of 2015 - - - Dated:- 3-3-2016 - I.A. Ansari, ACJ and MR. HEMANT GUPTA, J. For the Petitioner : Mr. D.V.Pathy, Advocate Mrs. Manju Jha, Advocate For the Respondent : Mrs. Nivedita Nirvikar, Advocate, Mr. Binay Kumar, Advocate, Mr. Jayant Roy choudhary, Advocate For The Accountant General : Mr. Madhuresh Prasad, Advocate .....

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..... Technology, respondent no.4, on the construction activity, undertaken by the petitioner. 4. The Government of India has issued Notification No. 25/2012, dated 20th June, 2012, exempting the services mentioned therein from the levy of service tax in exercise of the powers conferred under Section 93 of the Finance Act, 1994. It may also be noticed that Section 66D has been inserted by the Finance Act, 2012 with effect from 1st July, 2012, wherein negative list of the services on which service tax is not payable was inserted. 5. In counter affidavit, the stand of respondent No.1 is that the construction activity is taxable service under the provision of Section 65 of the Finance Act, 1994. It is pointed out that Notification No.25/2012, dated 20th June, 2012, has exempted specified services from the levy of service tax subject to fulfillment of the conditions stipulated for such exemption. The first and foremost condition needs to be satisfied is that specified service must be provided to Government or Local Authority or Governmental Authority. Governmental Authority has been defined by Notification No. 2/2014 dated 30th January, 2014. It is thus asserted that the Indian Instit .....

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..... to be stated in such order. The Notification dated 20th June, 2012 (Annexure 11) has been issued under Section 93 of the Finance Act, 1994. The relevant clause reads as under :- 2. Definitions.- For the purpose of this notification, unless the context otherwise requires, xxxxx xxxxxxx xxxxxxxx xxxxx (s) Governmental authority means a board, or an authority or any other body established with 90% or more participation by way of equity or control by Government and set up by an Act of the Parliament or a State Legislature to carry out any function entrusted to a municipality under article 243W of the Constitution. xxxxxxxx xxxxxxxxxxx xxxxxxxx 12. Services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of (a) a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession; (b) a historical monument, archaeological site or remains of national importance, archaeological excavation, or antiquity specified under the Ancien .....

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..... der Section 65B (31) of the Finance Act, 1994, and the Governmental Authority‟ is defined in clause 2(s) of the Notification, dated 20th June, 2012. Such clause has been amended by Notification dated 30th January, 2014. 9. It is undisputed that the Indian Institute of Technology, Bihta, Patna, whose academic block was to be constructed by the petitioner, was set up by an Act of Parliament, i.e., Indian Institutes of Technology Act, 1961 (59 of 1961) as an institute of national importance under Article 248 of the Constitution of India read with 7th Schedule List I. As per the definition of Governmental Authority as amended on 30th January 2014, an authority or board or any other body set up by an Act of Parliament or State Legislature is a Governmental Authority. Therefore, the Notification dated 20th June, 2012, exempts the activity of construction undertaken by the petitioner from payment of service tax. 10. However, the arguments of Mrs. Nivedita Nirvikar, learned counsel for respondent No.1, is that only an authority with 90% or more participation by way of equity or control to carry out any function entrusted to a municipality under Article 243W of the Constitution .....

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