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2023 (3) TMI 1012 - AT - Service TaxLevy of Service Tax - renting of vacant land surrounded by boundary wall - tax paid on service of renting beyond one year from the relevant date is time barred under Section 11A or not - refund of service tax paid on vacant land is hit by mischief of unjust enrichment or not. Whether renting of vacant land is taxable under the category of Renting of Immovable Property Service? - HELD THAT:- From the definition of renting of immovable property, it can be seen that a vacant land has been excluded from the term “Immovable Property”. It clearly justifies that even though such vacant land having facilities merely incidental to the use of such vacant land also falls under the exclusion category. As per the facts of the present case, on the vacant land there is only boundary wall which can be categorized as a facility incidental to use of such vacant land therefore, even though the land is surrounded by boundary wall, it fall under the term “Vacant land” provided in the definition of immovable property therefore, as per the facts of the present case, the vacant land is not liable for service tax being excluded from definition of immovable property. Refund of service tax paid on such vacant land - limitation under Section 11B - unjust enrichment - HELD THAT:- As regard the time limit, the submission of the appellant is that the amount paid is not a service tax as there was no statutory levy on the vacant land therefore, the amount which was paid will not be governed for refund under Section 11B therefore, the limitation of one year provided under Section 11B shall also not apply mutatis mutandis - the appellant have admittedly paid the service tax under the head of service tax of renting of immovable property service and the same was declared in the ST-3 returns as payment of service tax. In this fact, since the amount was admittedly paid as service tax, the refund of service tax shall be governed by Section 11B. The appellant have considered the gross rent as cum tax amount and while paying service tax to arrive at the taxable value, the service tax was excluded which shows that the service tax which was paid by the appellant was included in the gross renting recovered by the appellant if this be so, it is clear evidence that the incidence of the service tax paid by the appellant has been passed on to the service recipient for the reason that the gross amount collected from the service recipient includes the service tax amount also - the appellant is not entitle for the refund. Appeal dismissed.
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