9911796707
TMI Blog2023 (8) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... ent dispute are that the appellant is registered as a provider of taxable services under the category of renting of immovable property service [hereinafter referred to as 'RIPS'] and sale of space for advertisement within the meaning of Section 65(105)(zzzz) and Section 65(105)(zzzm) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the above rejection, it appears that the appellant filed an appeal before the first appellate authority, but however, even the first appellate authority vide Order-in-Appeal No. CMB-CEX-000-APP-011-14 dated 31.01.2014 having rejected their appeal, the present appeal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harges were exempted, the appellant did remit the Service Tax inadvertently, but however, the incidence of tax was not passed on. (ix) The dispute relates to the period from 01.11.2011 to 30.06.2012; thus, the said charges were also exempted when the Negative 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from 01.07.2012, but however, with effect from 01.04.2013, the exemption granted under the Negative List was also withdrawn.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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 1. - For the purposes of this sub-clause, "immovable property" includes - (i) building and part of a building, and the land appurtenant thereto; (ii) land incidental to the use of such building or part of a building; (iii) the common 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, entertainm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IPS under Section 65(105)(zzzz). It is his contention that the omission to use "vacant" at (c) above is a conscious omission since here, in the case on hand, such land is used for parking purposes only and hence, they are covered 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
