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2018 (12) TMI 1112 - AT - Service TaxRefund of service tax paid wrongly under the category of renting of immovable property - assesse claimed that the leasing of club (a business) does not fall in the meaning of word ‘immovable property’ - the appellant has been running the club by way of Joint Venture with AMPL, on principle to principle basis - revenue sharing - Revenue contended that, the club is a multiple use building and the service provided by the club were available only to members and their guests. Held that:- In this agreement from the Revenue Sharing Formula and the mutual covenants as agreed between the parties, it is crystal clear that the appellant and AMPL intended to do the business of running of club on principle to principle basis. We further hold that the subsequent modification of the Revenue Sharing Clause between the parties does not change the colour and reduce the arrangement between he parties as that of landlord and tenant. In principle, the appellant has not delivered the possession of club to AMPL by way of tenancy but has only given the right to manage and operate the club for their mutual benefit, on principle to principle basis. Refund claim - time limitation - Held that:- there is no application of Section 11 B of the Central Excise Act in grant of refund, in the facts of the present case following the precedent ruling in the case of Union of India Vs. ITC Ltd. – [1993 (7) TMI 75 - SUPREME COURT OF INDIA]. A tax wrongly realized or paid on in excess of what is permissible in law, is a realization made outside the provisions of the Act. Such amount cannot be retained by Revenue, being in conflict with Article 265 of the Constitution. Appeal allowed - decided in favor of appellant.
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