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TMI Blog2014 (1) TMI 1941X X X X Extracts X X X X X X X X Extracts X X X X ..... government organizations involved in providing education or health services. He argued that the said organizations to whom services were provided were non-commercial in nature, and therefore, no service tax was payable. During the scrutiny of refund claim, it was found that the said tax was payable under the category of erection and commissioning/ installation or pre-fabricated building. It was also noticed by the Revenue that during the period October 2010 to November 2011 no tax was paid under the head of construction service. The said refund claim was rejected by the original adjudicating authority both on the ground of merit as well as unjust enrichment. The SBL challenged the order in original before Commissioner (Appeals) who in the impugned order held that the services provided by the SBL were not taxable being non-commercial in nature. Commissioner (Appeals) also held that the provisions of Section 11B of the Central Excise Act, 1944 would be applicable to the instant case and refund claim can only be credited to the consumer welfare fund. Aggrieved by this order, SBL as well as Revenue has filed appeal before Tribunal. 3. Learned counsel for SBL has argued that in the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1994. It expressly says that 'commercial or industrial construction service' is chargeable to service if it is or engaged either wholly or primarily for the furtherance of commerce or industry. It implies that construction of new building pipeline etc. which is not meant for furtherance of commerce or industry is non taxable. On this part the appeal succeeds and I hold that the services provided by appellant is eligible for exemption from payment of service tax being non-commercial in nature." From the above observations of Commissioner (Appeals) it appears that he is of the opinion that service tax can only levied if the same are provided for the purpose of Commerce or Industries and not otherwise. We are not in agreement with this belief Commissioner (Appeals). The clarification that the services provided under the category of "Commercial or Industrial Construction Service" would not be chargeable to service tax when provided to Government Institutions for use in non-commercial activity cannot be applied to all other services provided to Government. There is no such rule in service tax which exempt all services provided to government/non commercial agencies which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams;]" From the above description, it is apparent that the Erection Commissioning or Installation Service are meant for Erection, Commissioning or Installation of plant equipment or structure whether prefabricated or otherwise and includes installation of various electrical/ plumbing/ heating sub-systems thereof. The construction of rooms for the school would certainly not fall within the description of ‗Erection, Commissioning or Installation Service', as rooms are neither a plant, machinery, equipment or structure. 8. The Commercial or Industrial Construction Service includes within its scope construction of a new building or a civil structure or a part thereof. Construction of rooms for educational institutions would ordinarily be covered under the description of construction of new building or a civil structure or a part thereof. In that sense, ordinarily Erection, Commissioning or Installation of rooms would fall under the category of construction of new building or a civil structure or part thereof. The said activity would become taxable only if the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 27 of the Customs Act do constitute "law" within the meaning of Article 265 of the Constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions must be held to be collected, retained or not refunded, as the case may be, under the authority of law. Both the enactments are self-contained enactments providing for levy, assessment, recovery and refund of duties, imposed thereunder . Section 11B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal - which is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition. The doctrine of unjust enrichment is a just and salutory doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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