TMI Blog2023 (8) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... sports, circus, entertainment and parking purposes. The legislature has used the words land and vacant land in accordance with the context, wherever applicable. When land in a legal sense includes structures, if any, raised thereon, the same covers the land appurtenant to a building or a part of the building as well. From a reading of the provisions, it is seen that, for the purposes of sub-clause (zzzz) of Section 65 (105), immovable property does not include land used for parking purposes - While clauses (a) and (b) under Explanation 1 make a reference to vacant land , clause (c) refers only to land . The purpose for the use of land is also mentioned as educational, sports, circus, entertainment and parking. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m) of the Finance Act, 1994 respectively. 2.2 It appears that the appellant filed an application for refund on 15.11.2012 seeking refund of the Service Tax paid by them on the parking services provided by them during the period from 01.11.2011 to 30.06.2012. It appears that the appellant realized that they were not liable to pay any Service Tax on the parking charges as the same is not covered in the definition of RIPS, which prompted the appellant to seek refund of Rs.12,57,268/- 2.3 The Revenue entertained a doubt that the parking space provided by the appellant in the open land in and around the shopping mall and some portion of built-up area could not be regarded as land , but as an integral part of the building and as such, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al has been filed before this forum. 7. Heard Shri Dwarakesh Prabhakaran, Ld. Advocate and Smt. Anandalakshmi Ganeshram, Ld. Superintendent. 8.1 The submissions of the Ld. Advocate could be summarized as under: - (i) The appellant is the owner of Brookefields Mall in Coimbatore and the main taxable service is letting out shops in the mall. (ii) The claim for refund made by the appellant was on the ground that they had inadvertently remitted Service Tax on the parking charges collected by them from the public / visitors to the mall for parking of vehicles in the open land, stilt floor or basement floor. (iii) The above parking charges were exempted from Service Tax by virtue of land used for parking purposes being excluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive List was introduced / took effect from 01.07.2012, but however, with effect from 01.04.2013, the exemption granted under the Negative List was also withdrawn. (x) The appellant having some of its services as exempted, the CENVAT Credit initially utilized for payment of duty was proportionately reversed under Rule 6 (3A) of the CENVAT Credit Rules, 2004. 8.2 He would place reliance on the decision of the Hon ble Supreme Court in the case of P. Rami Reddy ors. v. State of Andhra Pradesh ors. [(1988) 3 SCC 433] wherein the meaning of land in a legal sense has been held to include structures, if any, raised thereon. 9. Per contra, Ld. Superintendent supported the findings of the lower authorities. She would also rely on an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmon or shared areas and facilities relating thereto; and (iv) in case of a building located in a complex or an industrial estate, all common areas and facilities relating thereto, within such complex or estate, but does not include (a) vacant land solely used for agriculture, aquaculture, farming, forestry, animal husbandry, mining purposes; (b) vacant land, whether or not having facilities clearly incidental to the use of such vacant land; (c) land used for educational, sports, circus, entertainment and parking purposes; and (d) building used solely for residential purposes and buildings used for the purposes of accommodation, including hotels, hostels, boarding houses, holiday accommodation, tents, camping facilities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by the non-inclusion clause (c) i.e., land used for parking purposes . 14.1 The impugned order holds the view that since the car parking is provided from an immovable property (building) which is not vacant land, it is liable to tax during the period under dispute. From a reading of the provisions, it is seen that, for the purposes of sub-clause (zzzz) of Section 65 (105), immovable property does not include land used for parking purposes. Clause (c) which deals with the exclusion states: (c) land used for educational, sports, circus, entertainment and parking purposes; 14.2 While clauses (a) and (b) under Explanation 1 make a reference to vacant land , clause (c) refers only to land . The purpose for the use of land ..... X X X X Extracts X X X X X X X X Extracts X X X X
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