TaxTMI 
TaxTMI 
2023 (3) TMI 1012
X X X X Extracts X X X X
X X X X Extracts X X X X
....he refund of service tax paid on vacant land is hit by mischief of unjust enrichment. 02. Shri Hardik Modh, learned counsel appearing on behalf of the appellant submits that there is no dispute that the land which was given on rent is a vacant land. Merely, because it is surrounded by boundary wall, it does not lose the character of vacant land. He referred to the definition of immovable property under the category of Renting of Immovable property service wherein, he pointed out that the vacant land is falling under exclusion category therefore, the same is not taxable. As regard the part of the refund rejected on time bar, he submits that since there was no levy of service tax on vacant land, the service tax paid by the appellant cannot b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....MPANY- 2017 (50) S.T.R. 257 (Guj.) * ASSISTANT COLLR. OF CUS.- 1997 (90) E.L.T. 260 (S.C.) * XL TELECOM LTD.- 2006 (206) E.L.T. 303 (Tri.-Bang.) * SHUBH TIMB STEELS LIMITED- 2010 (20) S.T.R. 737 (P & H) * HERANBA IND. LTD.- 2022 (65) GSTL 84 (Tri-Ahmd) * COMEXX vs. CST, AHMEDABAD- A/10859/2020 dated 18.03.2020 04. We have carefully considered the submission made by both the sides and perused the records. We now deal all the three issues one by one. As regard the issue that whether renting of vacant land is taxable under the category of Renting of Immovable Property Service, it is not necessary to read the relevant definition as provided under Sub-section (90a)of Section 65 of the Finance Act, 1994 which reads as under:- 65[(90a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd 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, we are of the considered view that as per the facts of the present case, the vacant land is not liable for service tax being excluded from definition of immovable property. 4.1 As regard the refund of service tax paid on such vacant land, there are two issues, one is limitation under Section 11B and other is unjust enrichment. 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 l....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 221000 45526 20.60 May 07 22100 221000 45526 20.60 June 07 22100 221000 45526 20.60 663000 04.12.06 July 07 22100 221000 45526 20.60 38896 30.07.07 Aug.07 22100 221000 45526 20.60 175474 22.08.07 Sep.07 22100 221000 49593 22.44 Oct.07 211760 9240 4.36% 221000 49593 22.44 342815 07.11.07 Nov.07 196689 24311 12.36% 221000 45526 20.60 175474 26.12.07 Dec.07 196689 24311 12.36% 221000 45526 20.60 175474 22.01.08 Jan.08 226193 27957 12.36% 254150 15% increased ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....30% 254150 52355 20.60 201795 07.09.09 Sep. 09 230417 23733 10.30% 254150 52355 20.60 201795 15.09.09 Oct. 09 230417 23733 10.30% 254150 25415 10.00 228735 26.10.09 Nov. 09 230417 23733 10.30% 254150 25415 10.00 228735 13.11.09 Dec. 09 230417 23733 10.30% 254150 25415 10.00 228735 28.12.09 Jan.10 230417 23733 10.30% 254150 25415 10.00 228735 08.01.10 From the above calculation, it can be seen that 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 renti....