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2022 (8) TMI 645 - AT - Service TaxRejection of Refund claim - applicability of Section 102(1)(a) of FA - claimant had provided the services to M/s. Gujarat State Police Housing Corporation Ltd. (GSPHCL) is a company and not a Governmental Authority hence, the exemption is not applicable - incidence of service tax passed on or not - principles of unjust enrichment - sufficient reason for delay in filing the appeal before the Commissioner (Appeals), or not - Whether the services provided by the appellant to GSPHCL falls under the category of services provided to government or governmental authority and eligible for exemption under Section 102 of the Finance Act, 1994 consequential refund thereof? - HELD THAT:- The learned Commissioner (Appeals) has rejected the appeal despite the appellant’s filing of COD application showing difficulty for not filing the appeal within the stipulated time of 60 days. It is found that once the appellant have filed a COD application where delay is well within period of 30 days after stipulated period of 60 days, the learned Commissioner (Appeals) should have taken a lenient view and should have condoned the delay, by not condoning the delay the learned Commissioner (Appeals) has deprived the appellant from their right of appeal, therefore, the appellant should have been allowed condonation of the delay, accordingly, the order of rejection of the appeal by the Commissioner (Appeals) on time bar is not sustainable. Whether the service provided by the appellant to GSPHCL is service provided to a governmental authority? - HELD THAT:- The GSPHCL is a 100% owned by Government of Gujarat therefore, it clearly falls under the category of service provided to government authority - The corporation/board constituted under the act of State Government should be considered as a governmental authority and accordingly, exemption provided to the government or governmental authority is applicable in respect of service provided by a service provider to such board/corporation. In the present case also the service provider has provided service to GSPHCL which is a corporation of State Government incorporated under the State Government Act passed by the State Assembly accordingly, the GSPHCL is a governmental authority and exemption under Section 102 is clearly applicable. Principles of unjust enrichment - HELD THAT:- The lower authority have contended that the appellant have not submitted the necessary evidence to establish that the incidence of the service tax paid was not passed on to any other person. On this, the appellant may be given the opportunity to present the evidence and explanation on the aspect of unjust enrichment. Appeal allowed.
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