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2022 (6) TMI 916 - AT - Service TaxRefund of service tax paid, which was not required to be paid - services provided in relation to sports stadium - commercial or industrial construction service - Providing and fixing of seating system - Laying of Synthetic athletic track - nature of civil structure is not of commercial - principles of unjust enrichment - time limitation - HELD THAT:- The service of providing and laying of Synthetic Athletic Track has been provided in respect of sports organization of Government, Centre or State. It has been argued by the appellant that the service provided by them is squarely covered by the description of services given in a commercial and industrial construction service as defined in Section 65 (25b), however, since the said services are provided to Government facilities which are not of commercial nature, the same do not fall under the category of commercial or industrial construction services as defined in Section 65 (25b) - It is seen that the installation of chairs in a stadium would clearly be an activity similar to the activity of acoustic application or fittings or of the nature of fencing and railing. In that sense the activity of fixing chairs in a commercial establishment would be covered the description of service in the commercial or industrial construction service as defined in Section 65 (25b). The activity of laying of Synthetic Athletic Track Surface is akin to the activity of floor and wall tiling, wall covering and wall papering. The activity is of civil nature and, therefore, would be covered by the activities described in the definition of commercial or industrial construction service, however, since the same have been provided in respect of sport facilities owned by Government, State or Centre, the same would not be chargeable to tax. It is seen from the impugned order that since it was held that no refund is admissible, the ground of unjust enrichment as well as limitation were not examined - Since the issue of unjust enrichment, limitation and the implication of the decision of Apex Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT] has not been examined by the lower authorities, its needs to be sent back to original Adjudicating Authority. In so far as the taxability of service provided is concerned it is held that the services provided by the appellant are not taxable. For decision on the other issues, the matter is remanded back to the original Adjudicating Authority - Appeal allowed in part.
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