Case Law Details

Case Name : Prajapita Brahma Kumaris Ishwariya Vishwa Vidyalaya Vs Commissioner Of CGST & CE (CESTAT Mumbai)
Appeal Number : Service Tax Appeal No. 85279 of 2021
Date of Judgement/Order : 27/10/2022
Related Assessment Year :

Prajapita Brahma Kumaris Ishwariya Vishwa Vidyalaya Vs Commissioner Of CGST & CE (CESTAT Mumbai)

The only objection which has been raised is to the word ‘building’ used in the Notification No 25/2012-ST whereas appellant are claiming exemption in respect of shop and flats purchased by them from the M/s Yog Reality. In the impugned order and during the course of arguments learned authorized representative has sought to distinguish the decisions of Asha Murarka & Others {Manu/WB/0282/2015 and in the case of Notified Area Committee Nangal Township [MANU/SC/0991/1999 from the facts of following case and have argued that as per this decision a flat in a building should be construed as separate unit. A flat is in building. Multi storey buildings are divided into flats or units.

In the case of Notified Area Committee Nangal Township [AIR 1999 SC 2569] Hon’ble Apex Court has held as follows:

“We do not think that the Committee is right in its approach. If we may refer to the definition of the ‘building’, it means any house used for the purpose of human habilitation. The term ‘house’ in the present case would mean a dwelling house intended for human habilitation. It is not disputed that each quarter or bungalow is allotted to a separate employee who lives therein with his family. Simply because some quarters or some bungalows have common wall separating each other would not mean that that quarter or bungalow ceases to be a house. A house is a place of dwelling or habilitation. It is difficult to accept the proposition that quarters in one row having common wall though each separating the other would mean one building for the purpose of arriving at the annual value. We do not think that any argument is needed for us to hold that each such quarter or bungalow for the residence of employees of the Board would fall within the definition of ‘building’. Stand of the Committee appears to us is rather incongruous. Just to get more revenue, the Committee could not change its stand and put interpretation on the term ‘building’ which is incomprehensible. The Committee was not justified in clubbing all the quarters/bungalows in one block together and term that as ‘building’.”

After taking note of this decision, Hon’ble High Court of Rajasthan has in the case of Bharat Petroleum Corporation [RLW 2008 (1) Raj 439] held as follows:

“18. More than hundred years ago, Earl of Halsbury L.C. stated in the case of Grant v. Langston that the word “house” has acquired an artificial meaning. The word is no longer the expression of a simple idea; but to ascertain its meaning one must understand the subject matter with respect to which it is used in order to arrive at the sense in which it is employed in a statute. Each flat in a multi-storied building is a separate occupation and is a separate place of dwelling and habitation with the separate entry.

19. Seen thus, it is difficult to uphold the contention of State that group of flats in a multi-storied building owned by one person constitute one ‘building’ within the meaning of Section 2(3). For all legal and ordinary purposes, each separate flat in a multi-storied building would constitute a separate house or for that matter a separate building under Section 2(3) since each of such flat is separate and. there is no nexus with the flat above or below or side by side. There is no common functionality as such.

Hon’ble Supreme Court has in case of The Indian Oil Corporation Ltd. [1991 Supp (2) SCC 18] referred to various dictionary meaning of the word “building” and has observed as follows:

“9. In Blacks Law dictionary, Fifth Edition, the word ‘building’ has been defined thus:

Structure designed for habitation, shelter, storage, trade, manufacture, religion, business, education and the like. A structure or edifice enclosing a space within its walls and usually, but not necessarily, covered with a roof.

10. In Webster Comprehensive Dictionary, International Edition, ‘building’ has been defined thus:

An edifice for any use; that which is built, as a dwelling house, barn, etc. (2) The occupation, business or art of constructing. (3) The act or process of erecting or establishing.

11. Building has been defined in Stroud’s Judicial Dictionary, fourth Edition at 334. What is a ‘building’ must always be a question of degree and circumstances; its “ordinary and usual meaning is, a block of brick or stone work, covered in by a roof”. The ordinary and natural meaning of the word ‘building’ includes the fabric and the ground on which it stands.

12. In the Oxford English Dictionary the word ‘building’ has been defined to mean, “that which is built, structure, edifice, structure of the nature of a house built where it is to stand”. In D.C. Gouse & Co. etc. v. State of Kerala and Anr. etc. . In the context of Entry 49, List Ii of VII schedule to the Constitution (Taxes on lands and buildings) under the Kerala Buildings Act, 1975, this Court held that the word ‘building’ means “that which is built; a structure edifice”. The natural or ordinary meaning of a building is, “a fabric of which it is composed, the ground upon which its walls stand and the ground embraced within those walls”. Under the inclusive definition of that Act it was held that a house, out­house, garage or any other structure cannot be erected without the ground on which it is to stand. The expression ‘building’ includes the fabric of which it is composed, the ground upon which its walls stand and the ground within those walls because the ground would not have a separate existence, apart from the building.

13. Thus it is clear that a tank to be a building must be a structure designed for either habitation or shelter for human habitation or storage of inanimate objects in storehouse or stable for horses shed or a hut etc. within the four corners of the walls built with masonary or otherwise with ingress or egress. The word building must be given its ordinary natural meaning ascribable to it including the fabric and the ground on which it stands. On a mere look at the tank, by no stretch of imagination, it could be said to be a building.”

In view of the decisions as above we are of the view the word “building” used in entry at Sl No 13 (c) of the Notification No 25/2012-ST is wide enough cover the shop and flats purchased by the appellant in the project being developed by the M/s Yog Reality. That being so benefit of exemption under the said entry cannot be denied to the appellant on this ground.

FULL TEXT OF THE CESTAT MUMBAI ORDER

This appeal is directed against the order-in-appeal No SM/232/Appeals-II/MB/2020 dated 15.09.2020 of the Commissioner of CGST and Central Excise (Appeals-II), Mumbai. By the impugned order, Commissioner (Appeals) has upheld the rejection of the refund claim filed by the appellant.

2.1 Appellant is M/s. Prajapita Brahma Kumaris Ishwariya Vishwa Vidyalaya, Ghatkopar (West). They filed the refund claim in manner prescribed claiming refund of Service Tax of Rs.30,85,155/- vide their letter dated 05.10.2018.

2.2 The Appellant, who was a service receiver (as client / customer), has purchased shop / flat was Shop No. 3 in ‘A’ wing and Flat no. 301 to 306 in ‘A’ wing & Flat no. 301 & 302 in ‘B’ in Residential Building named as Bhaveshwar building No. 3 situated at FP No. 25, CTS No. 5953, Bhaveshwar Lane, Ghatkopar East, Mumbai – 400 077 from M/s. Yog Reality. They paid the consideration along with service tax of Rs.30,85,155/- to the service provider at the time of purchase of above mentioned shop / flats. The refund claim was supported by various documents as follows:

1. Letter dated 05.10.2018 of M/s. Yog Reality stating that they have not claimed any refund of Service Tax of the same amount of the same period.

2. Form- R application for Refund of Service Tax in respect of M/s. Prajapita Brahma Kumaris Ish wariya Vish wa Vidyalaya

3. Copy of Service Tax Return Oct 16 to March 17 & April 17 to June 17 pertaining to Developer/Service i. e. of M/s. Yog Reality (STC NO. AABFY1597MSD001)

4. Copy of Sale agreement

5. Bank statement pertaining to M/s. Yog Reality for the period from 07.12.2016 to 27.06.2017.

2.3 Appellant claimed that as per the entry 13 (c) of the Notification No 25/2012-ST they were exempt from payment of service tax and had paid the service tax wrongly at the time of purchase of the said shops/ flats, to the exchequer through service provider. Having become aware of the mistake, they have filed this refund claim.

2.4 After examination of the refund claim the jurisdictional officer issued deficiency memo to the appellant stating as follows:

“On going through the claim the following discrepancy has been noticed

(i) It is observed that, you as a service receiver {client/customer) paid service tax along with consideration to the developer (service provider for service provided/agreeing to be provided towards purchase of shop/flat in the project developed/constructed by developer(service provider) and claimed for refund for the said service tax amount paid to the developer (service provider) not to the Service Tax Department. It appears that you are not “assessee” in terms of Section 65(7) of erstwhile finance act, 1994 as amended. Further, a registered person under the finance Act, 1994 is entitled to make refund application before the competent authority. You are requested to clarify whether you are registered with the Department for providing/receiving any service in Service tax regime and filling any service tax returns in form ST-3, and if so, please submit the copy of the same. You are also requested to submit details of Service tax payment made to the developer along with documentary evidences in respect of above refund claim made.

(ii) As per statement (Annexure-1) submitted by you, it is observed that service tax has been paid on March 17 and July 17, however claim has been filed on 05th October, 2018. The claim is time barred as it has been filed after expiry of one year. As per Section 1 1B of Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. The claim should be filed within one year from the relevant date.

(iii) You are requested to submit the documentary evidence showing you are registered under Section 12AA of the Income Tax Act, 1962 (43 of 1961) and meant predominantly for religious use by general

2.5  After considering the submissions made by the appellant, original authority vide his order in original No 37/ALT/Refund/MB/Dn-IX/Prajapati/20 18-19 dated 04.02.2019, rejected the refund claim filed by the appellant both on merits and ground of limitation.

2.6 Aggrieved appellant filed the appeal before Commissioner (Appeals) who while setting aside the order on limitation upheld the rejection of refund claim on merits.

2.7 Aggrieved appellant have filed this appeal.

2.8 Revenue has filed no appeal against the impugned order.

3.1 We have heard Shri Mahesh Raichandani, Advocate for the appellant and Shri Nitin M. Tagade, Joint Commissioner, Authorized Representative for the revenue.

3.2 Arguing for the appellant learned counsel submits:

> The only issue involved in the present appeal is in respect of interpretation of the word “building”, used in entry at Sl No 13 (c) of the Mega Exemption Notification.

> Appellant is registered under Section 12AA of the Income Tax Act, 1961. They had purchased certain flats and shops in the project being developed by the Yog Reality. At the time of purchase they had paid the service tax due on the transaction undertaken

> Later on they discovered that they were exempt from payment of this tax and claimed refund of the amount paid by them as service tax.

> By the impugned order, the only objection that Commissioner (Appeal) has to their refund claim is that they have received the specified services from service provider, Yog Reality in respect of the flat and shops and not in respect of the “building” hence the benefit of this exemption cannot be allowed to them.

> In the impugned order Commissioner (Appeal) has categorically held that the refund claim made by them will not be hit by the limitation as per Section1 1B of the Central excise Act, 1944. Revenue has not filed any appeal against this finding of the Commissioner (Appeal) and hence these finding have become final.

> The term building has not been defined by the Notification. For understanding the meaning of the said word reference is made to Merriam Webster Dictionary and the Concise Oxford Dictionary.

> In the case of Asha Murarka and others [MANU/WB/0282/2012], Hon’ble Kolkata High Court has held that “For the purpose of assessment of property tax, the area occupied or owned by the writ petitioners would be considered as a building within the meaning of definition of building given in section 2 (5) of the Kolkata Municipal Corporation Act, 1980.”

> Similarly in case of Notified Area Committee Nangal Township [MANU/SC/0991/1998], Hon’ble Supreme Court has held “building” means any house used for the purpose of human habitation.

> By application of the ratio of the above two decisions it is evident that flats and shops purchased by the appellant would be covered by the term “building” used in the Notification No 25/2012-ST at Sl No 13 (c).

> In the impugned order, Commissioner (Appeal) has while deciding the appeal rejected the refund claim filed by the appellant on the ground which were never stated in the show cause notice/ deficiency memo. It is settle law that no authority could have travelled beyond the show cause notice as has been held in the following decisions:

    • Toyo Engineering India Limited [2006 (201) ELT 513 (SC)]
    • Brindavan Beverages [2007 (213) ELT 487 (SC)]
    • Ballarpur Industries Ltd. [2007 (215) ELT 489 (SC)]
    • Reckitt and Colman of India Ltd [1996 (88) ELT 641 (SC)]

> In case of Talanpur Ramsabha Bhawan [2020-TIOL-1307- CESTAT-DEL], benefit of this exemption has been allowed in similar case.

3.3 Learned authorized representative while reiterating the findings recorded in the impugned order submits that:

> Distinguished the decisions relied upon by the appellant.

> Relied upon the decision of the Hon’ble Apex Court in case of Dilip Kumar and Co, and stated that the terms used in the notification should be construed strictly.

> There was no protest filed by the appellant in the manner as prescribed and hence the refund claim is time barred.

> The refund claim in the present case cannot be allowed without modification of the assessment order as has been held by the Hon’ble Apex Court in the case of ITC Ltd. [2019-TIOL-418-SC-Cus-LB] and by this tribunal in case of Karanja Terminal and Logistics Pvt Ltd. [2021-TIOL-76- CESTAT-Mum]

> Issue of unjust refund needs to be examined.

4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments.

4.2 For rejecting the refund claim filed by the appellant original authority has vide his order in original observed as follows:

“1. have carefully gone through the aforesaid Refund Claim and relevant documents on records, filed by the claimant along with written submission dated 03.01.2019′ submitted to this office on 04.01.2019 at the time of the PH.

2. I find that the claimant have filed a refund calm of 30,85,155/. I find that the said refund claim has been filed by the claimant in the capacity of service recipient. The ground of the said refund claim is that the claimant had purchased 08 flats and a shop in the building constructed by the Developer from M/s. Yog Reality. The claimant has argued that though as per the Entry No.13(c) of Notification No. 25/2012-ST dated 20/06/2012 there was an exemption from service tax to them, on demand from the Developer they had paid service tax amount to the developer, refund of which they are now claiming.

3. It is an argument of the claimant that as per Entry No. 13(c) of the Notification No. 25/2012-ST dated 20/06/2012 construction services provided to them were exempted service and since they have paid service tax of Rs.30,85,155/- to the Developer who subsequently deposited the same with Government Exchequer, they are rightly claiming refund claim of service tax paid by the Developer after collecting the same from

4. I have carefully gone through the text of Entry No. 13(c) of the Notification No. 25/2012 ST dated 20/06/2012. I find that the said entry provided an exemption from service tax payment for the services provided by way of construction, erection, commissioning installation, completion, fitting out, repair, maintenance, renovation or alteration of – a building owned by an entity registered under section 12AA of the Income Tax Act, 1961 (43 of 1961) and meant predominantly for religious use by general public. On plain reading of the said entry it appears that the said exemption was available only if the above mentioned services like construction, erection, repair, maintenance etc. were provided in respect to a building and not to a single flat or shop owned by an entity registered under Section 12AA of the Income Tax Act’1961. In view of the same, I find that the developer had correctly assessed and paid service tax on flats and a shop sold to the claimant. Therefore, on this ground alone, I hold that the claimant is not eligible for refund of service tax amounting to Rs.30,85,155/-

5. Moreover, I find that the claimant have filed the refund claim on 05/10/2018 to this office. As per explanation B() of Section 118 of Central Excise Act, 1944, the relevant date for filing refund claim is one year from the date of payment of duty. M/s. Yog Reality vide letter dated 05.10.2018 informed that they have deposited Service tax collected from the claimant, to the Government Exchequer, an declared in the Service Tax returns for the year 2016-2017 & 2017-2018 ( April to June 2017). It is seen that the return for the period April to June 2017 was filed on 11.07.2017. In the instant case claim for refund has been made on 05/10/2018 and therefore is time barred under the provisions of Section 11 B of the Central Excise Act, 1944 and as such the refund claim is liable for rejection on the ground of limitation.”

4.2 For upholding the order in original on merits Commissioner (Appeals) has in the impugned order observed as follows:

“6. I have carefully gone through the facts of the case, records placed in the file and submission made during the course of personal hearing. Considering the issue involved, the short questions to be decided in the instant case is whether the adjudicating authority rightly rejected the refund claim filed by the Appellant in respect of Service Tax paid on the purchase of shops/flats from M/s Yog Reality, developer (Service Provider). The issues to be decided in the instant case are stated as below:

(1) Whether the service provided by M/s. Yog Reality to the Appellant by way of construction of building and for flats and shops owned by the Appeke registered under Section 12AA of the Income Tax Act. were exempted video Entry no. 13(c) of the Notification No. 25/2012-ST dated 20.06.2012?

(ii) Whether the refund claim is liable for rejection on the grounds of limitations

7. As regards the first issue, I find that the Appellant had purchased under constructions 8 (Eight) Flats and Shop from M/s. Yog Reality in terms of the Sale Agreement dated 19.12.2016. The Appellant paid Service Tax in instalments as and when demanded by the developer M/s. Yog Reality. Further, the developer deposited the amount so collected in the government treasury and certified the same. The Appellant held that no Service Tax was payable on the above transaction as a religious body registered under section 12AA of the Income Tax Act, 1961 the services provided by the developer are eligible for exemption in terms of Notification No. 25/20012-ST dated 20.06.2012 vide Entry No. 13 (c). However, the above view was not shared by M/s. Yog Reality (developer) and the tax was paid under protest by the Appellant to the developer. Now, the Appellant have filed the refund claim for the Service Tax which was paid under protest. However, the adjudicating authority rejected the entire refund claim of the Appellant on the grounds mentioned in para 3 above.

7.1 With effect from 01.07.2012 all services provided in India became taxable except for ones specified under section 66D of Finance Act, 1994 (negative list of services) or those exempt under the mega exemption notification No.25/2012-ST.

At the outset, I would discuss the relevant charging portion of the Section 66B which is extracted below:

“There shall be levied a tax (hereinafter referred to as the Service Tax) at the rate of twelve percent on the value of all services,, other than those services specified in the negative fist, provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may be prescribed..”

Section 65B (44) of the Finance Act, 2012 defines the term ‘service’ is extracted below:

“65B. in this Chapter, unless the context otherwise requires,

(44) “service” means any activity carried out by a person for another for consideration, and includes a declared service, but excludes

….”

The term “service” has been defined as any activity carried on for a consideration by one person for another. As the term “activity” and “consideration” have not been defined in the Finance Act, 1994. Hence, the same would assume wider encompass and application.

Section 66D enumerates the list of services which are out of the purview of Service Tax.

For the sake of brevity, I will reproduce entry No.13 (c) of Notification 25/2012-ST which is as follows:

Notification 25/2012-ST dated 20.06.2012 as amended exempts certain specified taxable services from the whole of Service Tax leviable under section 66B of the Finance Act, 1994.

As per Sr. No. 13 (c) of the above notification, following services are exempt from the whole of Service Tax leviable under section 66B of the Finance Act, 1994:

13. Services provided by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of:

(c) a building owned by an entity registered under section 12 AA of the Income tax Act, 1961 (43 of 1961) and meant predominantly for religious use by general public:

7.2 From a bare reading of the provisions above, it is apparently clear that the said exemption has been provided to services which are provided by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of building owned by an entity registered under section 12AA of the Income Tax Act and such building are to be used predominantly for religious use. In this regard, the Appellant argued that the term ‘building’ has not been defined under the said notification neither under the Finance Act or the Rules made thereunder. Further, the common parlance and dictionary meanings of the word ‘building’

i) A structure with a roof and walls, such as a house or (Ref: www. oxford dictionaries. com)

ii) a usually roofed and walled structure built for permanent use (as for a dwelling)-Merriam Webster Dictionary

iii) a structure with walls and a roof, such as a house or factory(Ref : www.collinsdictionary.com)

7.3 It is the contention of the Appellant that Flat is understood to be a place, where two houses are built one above another as in modern times a practice has grown up of putting separate houses one above the other. For legal and ordinary purposes, they are separate houses and each Flat is separately let and occupied. One has no connection with those above or below, except in so far as it may derive support from those below instead of from the ground, as in the case of ordinary houses.

7.4 The Appellant has relied upon the decision in the case of Notified Area Committee Nan gal Township v. Bhakra Management Board, Chandigarh and Ors. J.T. 1999 (5) SC 349, where the question that came up for consideration before the Supreme Court was whether the Notified Area Committee was correct in assessing the annual value of row of quarters in one block as a ‘building for the purpose of levying house tax under the Punjab Municipal Act, 1911. The expression, ‘building’ in the Punjab Municipal Act, 1911 is defined in Clause (2) of Section 3 of the Act to mean “any shop, house, hut, outhouse, shed or stable, whether used for the purpose of human habitation or otherwise and whether of masonry, bricks, wood, mud, thatch, metal or any other material whatever and includes a wall and a well.” While dealing with the definition of building’ in the context of row of quarters in one block as to whether the entire row of bungalow/quarter is one building for assessing the rental value of property tax, the Supreme Court held that simply because some quarters or some bungalows have common wall would not mean that such quarter or bungalow ceases to be a house. A house is a place of dwelling or habitation and each quarter or bungalow is allotted to a separate employee who lives therein with his family. Hon ‘ble Supreme Court did not accept the proposition that quarters in one row having common wall though each separating each other would mean one ‘building’ for the purpose of arriving at an annual value. If the house is built by the side of the other house in one row having common wall then they could be treated as a separate ‘building’ for the purposes of property tax.

7.5 It is the contention of the Appellant that from the reading of entry 13(c) it is crystal clear that the intention of the Government is to grant exemption to the “entity registered under section 12 AA of the Income tax Act, 1961 and meant predominantly for religious use by general public” on the services received by them for building owned by them. The exemption is “qua” the entity. The exemption is granted to the institute. The exemption is denied by the revenue that the flats were predominantly for religious use by the general public. In view of the ratio of Hon ’ble Supreme Court in the case of Notified Area Committee Nan gal Township v. Bhakra Management Board, Chandigarh and Ors. J.T. 1999 (5) SC 349 the flats in a multi­storied building though having common wall would be considered a separate ‘building’, qua the religious institution, for the purposes of the benefit of the Notification.

7.6 As regards the argument above that it was the intention of the Government in granting exemption qua-entity, I find that in the subsequent decision on the interpretation of exemption notification the Hon ‘ble Supreme Court in the case of DILIP KUMAR & COMPANY, 2018 (361) E.L.T. 577 (S.C.) has held that where the words in a statute are clear, plain and unambiguous and only one meaning can be inferred, Courts are bound to give effect to the said meaning irrespective of the consequences. In applying the rule of plain meaning any hardship and inconvenience cannot be the basis to alter the meaning to the language employed by the legislation especially in fiscal statutes and penal statutes:

“19. The well-settled principle is that when the words in a statute are clear, plain and unambiguous and only one meaning can be inferred, the Courts are bound to give effect to the said meaning irrespective of consequences. If the words in the statute are plain and unambiguous, it becomes necessary to expound those words in their natural and ordinary sense. The words used declare the intention of the Legislature. In Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907, it was held that if the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act.

20. In applying rule of plain meaning any hardship and inconvenience cannot be the basis to alter the meaning to the language employed by the legislation. This is especially so in fiscal statutes and penal statutes. Nevertheless, if the plain language results in absurdity, the Court is entitled to determine the meaning of the word in the context in which it is used keeping in view the legislative purpose [Assistant Commissioner, Gadag Sub-Division, Gadag v. Mathapathi Basavannewwa, 1995 (6) SCC 355]. Not only that, if the plain construction leads to anomaly and absurdity, the Court having regard to the hardship and consequences that flow from such a provision can even explain the true intention of the legislation. Having observed general principles applicable to statutory interpretation, it is now time to consider rules of interpretation with respect to taxation.

It also held that no regard should be made to intendment while making Interpretation of taxing statute and matter should be governed wholly by the language of the notification, equity or intendment have no place in interpretation of a tax statute:

22. We are not suggesting that literal rule de hors the strict interpretation nor one should ignore to ascertain the interplay between ‘strict interpretation and literal interpretation. We may reiterate at the cost of repetition that strict interpretation of a statute certainly involves literal or plain meaning test. The other tools of interpretation, namely contextual or purposive interpretation cannot be applied nor any resort be made to look to other supporting material, especially in taxation statutes. Indeed, it is well-settled that in a taxation statute, there is no room for any intendment; that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification. Equity has no place in interpretation of a tax statute. Strictly one has to look to the language used; there is no room for searching intendment nor drawing any presumption. Furthermore, nothing has to be read into nor should anything be implied other than essential inferences while considering a taxation statute.”

7.7 Further, it also held that the burden to prove for its entitlement is on the assessee claiming exemption and If there is any ambiguity in exemption Notification, benefit of such ambiguity cannot be claimed by assessee and it must be interpreted in favour of Revenue. It also held that the ratio of Supreme Court judgment in Sun Export Corporation (1997 (93) E.L. T. 641 (S.C.)] and all decisions taking similar view as in Sun Export Corporation (supra) were now being overruled :

“52. To sum up, we answer the reference holding as under

(1) Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption

(2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject assessee and it must be interpreted in favour of the revenue.

(3) The ratio in Sun Export case (supra) is not correct and all the decisions which took similar view as in Sun Export case (supra) stands overruled.”

7.8 Similarly, I also find that Hon’ble High Court Delhi in the case of J.KUL TAR EXPORTS Versus COMMISSIONER OF CENTRAL EXCISE, DELHI-I 2020 (36) G.S. T.L. 208 (Del.) has also held:

“17. It is trite, that while interpreting exemption notifications, such notifications have to be interpreted, stricto sensu [Commissioner of Customs (Import), Mumbai v. Dilip Kumar & Co. (2018) 9 SCC 1 = 2018 (361) E. L. T. 577 (S. C.)]; Commissioner of Central Excise v. Hari Chand Shri Gopal & Others (2011) 1 SCC 236 = 2010 (260) E.L.T. 3 (S.C.); Commissioner of Central Excise v. Mahaan Dairies (2004) 11 SCC 798 = 2004 (166) E.L.T. 23 (S.C.)].

The Supreme Court in Saraswati Sugar Mills (2011 (270) E. L. T. 465 (S. C.)], has affirmed this principle, assailing in paragraph 7, as follows:

“7. … A party claiming exemption has to prove that he/it is eligible for exemption contained in the notification. An exemption notification has to be strictly construed. The conditions for taking benefit under the notification are also to be strictly interpreted. When the wordings of notification is clear, then the plain language of the notification must be given effect to. By way of an interpretation or construction, the Court cannot add or substitute any word while construing the notification either to grant or deny exemption. The Courts are also not expected to stretch the words of notification or add or subtract words in order to grant or deny the benefit of exemption notification. In Bombay Chemicals (P) Ltd. v. CCE – (1995) Supp (2) SCC 646, a three Judge Bench of this Court held that an exemption notification should be construed strictly, but once an article is found to satisfy the test by which it falls in the notification, then it cannot be excluded from it by construing such notification narrowly”.

19. Therefore, the clause 2(e) of the Notification No. 41/2007- T. must be applied strictly, and the Appellant cannot selectively seek relief of the said notification. The CESTAT has passed a laconic, well-reasoned and thorough order upholding the order of the Commissioner (Appeals), which merits absolutely no interference by us.

20. Therefore, the question of law raised in this appeal is answered against the Appellant and in favour of the Respondent and this appeal is hereby dismissed.”

7.9 In view of the above, while interpreting the exemption notification a Strict interpretation needs to be taken, hence the impugned order of the lower adjudicating authority rejecting the refund claims are justifiable and the Appellant will not be eligible for the benefit of Entry No. 13(C) of the Notification No. 25/2012-ST dated 20.06.2012. Held accordingly.”

4.3 By the impugned order Commissioner (Appeals) has held that the refund claim filed by the appellant was filed in time and will not be hit by the limitation as provided for in terms of Section 11B of Central Excise Act, 1944 read along with the Section 83 of the Finance Act, 1994. Revenue has not filed any appeal against this before the tribunal. In the appeal filed by the appellant revenue cannot take up this ground for getting a decision in their favour. Thus the ground taken by the authorized representative in this respect needs to be rejected for this reason only.

4.4 The only ground thus for rejection of the refund claim is denial of exemption as claimed by the appellant in terms of Sl No 13 (c) of the notification No 25/2012-ST. The said entry has been reproduced by the Commissioner (Appeals) in the impugned order in para 7.1 of the impugned order. Revenue has relied upon the decision of the Hon’ble Apex Court in the case of Dilip Kumar & Co and the decision of Hon’ble Delhi High Court in the case of J.Kultar Exports to hold that by applying the principles of strict interpretation of the Notification the exemption claimed by the appellant cannot be allowed.

4.5 We refer back to the decision of the Hon’ble Supreme Court in the case of Dilip Kumar and Co., wherein on the issue of strict interpretation, literal interpretation and interpretation of the exemption notification, Hon’ble Apex Court has observed as follows:

“22. At the outset, we must clarify the position of ‘plain meaning rule or clear and unambiguous rule’ with respect of tax law. ‘The plain meaning rule’ suggests that when the language in the statute is plain and unambiguous, the Court has to read and understand the plain language as such, and there is no scope for any interpretation. This salutary maxim flows from the phrase “cum inverbis nulla ambiguitas est, non debet admitti voluntatis quaestio”. Following such maxim, the Courts sometimes have made strict interpretation subordinate to the plain meaning rule [Mangalore Chemicals case (Infra para 37).], though strict interpretation is used in the precise sense. To say that strict interpretation involves plain reading of the statute and to say that one has to utilize strict interpretation in the event of ambiguity is self-contradictory.

23. Next, we may consider the meaning and scope of ‘strict interpretation’, as evolved in Indian law and how the higher Courts have made a distinction while interpreting a taxation statute on one hand and tax exemption notification on the other. In Black’s Law Dictionary (10th Edn.) ‘strict interpretation’ is described as under :

Strict interpretation. (1 6c) 1. An interpretation according to the narrowest, most literal meaning of the words without regard for context and other permissible meanings. 2. An interpretation according to what the interpreter narrowly believes to have been the specific intentions or understandings of the text’s authors or ratifiers, and no more. – Also termed (in senses 1 & 2) strict construction, literal interpretation; literal construction; restricted interpretation; in terpretatio stricta; in terpretatio restricta; interpretatio verbalis. 3. The philosophy underlying strict interpretation of statutes. – Also termed as close interpretation; interpreta tio restrictive.

See strict constructionism under constructionism. Cf. large interpretation; liberal interpretation (2).

“Strict construction of a statute is that which refuses to expand the law by implications or equitable considerations, but confines its operation to cases which are clearly within the letter of the statute, as well as within its spirit or reason, not so as to defeat the manifest purpose of the legislature, but so as to resolve all reasonable doubts against the applicability of the statute to the particular case.’ Wiliam M. Lile et al., Brief Making and the use of Law Books 343 (Roger W. Cooley & Charles Lesly Ames eds., 3d ed. 1914).

“Strict interpretation is an equivocal expression, for it means either literal or narrow. When a provision is ambiguous, one of its meaning may be wider than the other, and the strict (i.e., narrow) sense is not necessarily the strict (i.e., literal) sense.” John Salmond, Jurisprudence 171 n. (t) (Glanville L. Williams ed., 10th ed. 1947).

24. As contended by Ms. Pinky Anand, Learned Additional Solicitor General, the principle of literal interpretation and the principle of strict interpretation are sometimes used interchangeably. This principle, however, may not be sustainable in all contexts and situations. There is certainly scope to sustain an argument that all cases of literal interpretation would involve strict rule of interpretation, but strict rule may not necessarily involve the former, especially in the area of taxation. The decision of this Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court Chandigarh and Ors., (1990) 3 SCC 682, made the said distinction, and explained the literal rule-

“The literal rules of construction require the wording of the Act to be construed according to its literal and grammatical meaning whatever the result may be. Unless otherwise provided, the same word must normally be construed throughout the Act in the same sense, and in the case of old statutes regard must be had to its contemporary meaning if there has been no change with the passage of time.”

That strict interpretation does not encompass strict – literalism into its fold. It may be relevant to note that simply juxtaposing ‘strict interpretation’ with literal rule’ would result in ignoring an important aspect that is ‘apparent legislative intent’. We are alive to the fact that there may be overlapping in some cases between the aforesaid two rules. With certainty, we can observe that, ‘strict interpretation’ does not encompass such literalism, which lead to absurdity and go against the legislative intent. As noted above, if literalism is at the far end of the spectrum, wherein it accepts no implications or inferences, then ‘strict interpretation’ can be implied to accept some form of essential inferences which literal rule may not accept.

25. We are not suggesting that literal rule de hors the strict interpretation nor one should ignore to ascertain the interplay between ‘strict interpretation’ and ‘literal interpretation’. We may reiterate at the cost of repetition that strict interpretation of a statute certainly involves literal or plain meaning test. The other tools of interpretation, namely contextual or purposive interpretation cannot be applied nor any resort be made to look to other supporting material, especially in taxation statutes. Indeed, it is well-settled that in a taxation statute, there is no room for any intendment; that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification. Equity has no place in interpretation of a tax statute. Strictly one has to look to the language used; there is no room for searching intendment nor drawing any presumption. Furthermore, nothing has to be read into nor should anything be implied other than essential inferences while considering a taxation statute.

26. Justice G.P. Singh, in his treatise ‘Principles of Statutory Interpretation’ (14th ed. 2016 p. -879) after referring to Re, Micklethwait, (1885) 11 Ex 452; Partington v. A.G., (1869) LR 4 HL 100; Rajasthan Rajya Sahakari Spinning & Ginning Mills Federation Ltd. v. Deputy CIT, Jaipur, (2014) 11 SCC 672, State Bank of Travancore v. Commissioner of Income Tax, (1986) 2 SCC 11 and Cape Brandy Syndicate v. IRC, (1921) 1 KB 64, summed up the law in the following manner –

“A taxing statute is to be strictly construed. The well-established rule in the familiar words of LORD WENSLEYDALE, reaffirmed by LORD HALSBURY AND LORD SIMONDS, means : ‘The subject is not to be taxed without clear words for that purpose : and also that every Act of Parliament must be read according to the natural construction of its words. In a classic passage LORD CAIRNS stated the principle thus : “If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of law the case might otherwise appear to be. In other words, if there be admissible in any statute, what is called an equitable construction, certainly, such a construction is not admissible in a taxing statute where you can simply adhere to the words of the statute. VISCOUNT SIMON quoted with approval a passage from ROWLATT, J. expressing the principle in the following words : “In a taxing Act one has to look merely at what is clearly said. This is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.”

It was further observed :

“In all tax matters one has to interpret the taxation statute strictly. Simply because one class of legal entities is given a benefit which is specifically stated in the Act, does not mean that the benefit can be extended to legal entities not referred to in the Act as there is no equity in matters of taxation….”

Yet again, it was observed :

“It may thus be taken as a maxim of tax law, which although not to be overstressed ought not to be forgotten that, “the subject is not to be taxed unless the words of the taxing statute unambiguously impose the tax on him”, [Russel v. Scott, (1948) 2 All ER 1]. The proper course in construing revenue Acts is to give a fair and reasonable construction to their language without leaning to one side or the other but keeping in mind that no tax can be imposed without words clearly showing an intention to lay the burden and that equitable construction of the words is not permissible [Ormond Investment Co. v. Betts, (1928) AC 143]. Considerations of hardship, injustice or anomalies do not play any useful role in construing taxing statutes unless there be some real ambiguity [Mapp v. Oram, (1969) 3 All ER 215]. It has also been said that if taxing provision is “so wanting in clarity that no meaning is reasonably clear, the Courts will be unable to regard it as of any effect [IRC v. Ross and Coutler, (1948) 1 All ER 616].”

Further elaborating on this aspect, the Learned author stated as follows :

“Therefore, if the words used are ambiguous and reasonable open to two interpretations benefit of interpretation is given to the subject [Express Mill v. Municipal Committee, Wardha, AIR 1958 SC 341]. If the Legislature fails to express itself clearly and the taxpayer escapes by not being brought within the letter of the law, no question of unjustness as such arises [CIT v. Jalgaon Electric Supply Co., AIR 1960 SC 1182]. But equitable considerations are not relevant in construing a taxing statute, [CIT, W.B. v. Central India Industries, AIR 1972 SC 397], and similarly logic or reason cannot be of much avail in interpreting a taxing statute [Azam Jha v. Expenditure Tax Officer, Hyderabad, AIR 1972 SC 2319]. It is well-settled that in the field of taxation, hardship or equity has no role to play in determining eligibility to tax and it is for the Legislature to determine the same [Kapil Mohan v. Commr. of Income Tax, Delhi, AIR 1999 SC 573]. Similarly, hardship or equity is not relevant in interpreting provisions imposing stamp duty, which is a tax, and the Court should not concern itself with the intention of the Legislature when the language expressing such intention is plain and unambiguous [State of Madhya Pradesh v. Rakesh Kohli & Anr., (2012) 6 SCC 312]. But just as reliance upon equity does not avail an assessee, so it does not avail the Revenue.”

The passages extracted above, were quoted with approval by this Court in at least two decisions being Commissioner of Income Tax v. Kasturi Sons Ltd., (1999) 3 SCC 346 and State of West Bengal v. Kesoram Industries Limited, (2004) 10 SCC 201 [hereinafter referred as ‘Kesoram Industries case’ for brevity]. In the later decision, a Bench of seven-Judges, after citing the above passage from Justice G.P. Singh’s treatise, summed up the following principles applicable to the interpretation of a taxing statute :

“(i) In interpreting a taxing statute, equitable considerations are entirely out of place. A taxing statute cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the light of what is clearly expressed : it cannot imply anything which is not expressed : it cannot import provisions in the statute so as to supply any deficiency : (ii) Before taxing any person, it must be shown that he falls within the ambit of the charging section by clear words used in the section; and (iii) If the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject and there is nothing unjust in a taxpayer escaping if the letter of the law fails to catch him on account of Legislature’s failure to express itself clearly”.

27. Now coming to the other aspect, as we presently discuss, even with regard to exemption clauses or exemption notifications issued under a taxing statute, this Court in some cases has taken the view that the ambiguity in an exemption notification should be construed in favour of the subject. In subsequent cases, this Court diluted the principle saying that mandatory requirements of exemption clause should be interpreted strictly and the directory conditions of such exemption notification can be condoned if there is sufficient compliance with the main requirements. This, however, did not in any manner tinker with the view that an ambiguous exemption clause should be interpreted favouring the revenue. Here again this Court applied different tests when considering the ambiguity of the exemption notification which requires strict construction and after doing so at the stage of applying the notification, it came to the conclusion that one has to consider liberally.”

4.5 Thus it is clear from the above in the case of Dilip Kumar & Co, Hon’ble Supreme Court has itself rejected the argument advanced to the effect that strict interpretation and literal interpretation are the same. After taking note of the decision in the case of Dilip Kumar & Co., Hon’ble Supreme Court has in case of

(i) Linde India Ltd. [2020 (36) GSTL 3 (SC)], Hon’ble Apex Court observed:

“16. The term ‘medicine’ is not defined in the 1940 Act. It is a trite principle of interpretation that the words of a statute must be construed according to the plain, literal and grammatical meaning of the words. Justice G.P. Singh in his seminal work Principles of Statutory Interpretation states :

“The words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the statute to suggest the contrary…in the statement of the rule, the epithets ‘natural’, ‘ordinary’, ‘literal’, grammatical’ and ‘popular’ are employed almost interchangeably.

It is often said that a word, apart from having a natural, ordinary or popular meaning (including other synonyms i.e. literal, grammatical and primary), may have a secondary meaning which is less common e.g. technical or scientific meaning. But once it is accepted that natural, ordinary or popular meaning of the word is derived from its context, the distinction drawn between different meanings loses much of its relevance.”

Similarly, Craies on Statute Law states :

“One of the basic principles of interpretation of Statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary to, or inconsistent with, any express intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity.”

The words of a statute should be first understood in their natural, ordinary or popular sense and phrases and sentences should be construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary. Where a word has a secondary meaning, the assessment is whether the natural, ordinary or popular meaning flows from the context in which the word has been employed. In such cases, the distinction disappears and Courts must adopt the meaning which flows as a matter of plain interpretation and the context in which the word appears.”

(ii) Accelor Mittal Nippon Steel India Ltd. [2022 (379) ELT 418 (SC)] has observed as follows:

“14.1 While the exemption notification should be liberally construed, beneficiary must fall within the ambit of the exemption and fulfill the conditions thereof. In case such conditions are not fulfilled, the issue of application of the notification does not arise.

14.2 It is settled law that the notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. An exception and/or an exempting provision in a taxing statute should be construed strictly and it is not open to the Court to ignore the conditions prescribed in industrial policy and the exemption notifications.

14.3 The exemption notification should be strictly construed and given meaning according to legislative intendment. The statutory provisions providing for exemption have to be interpreted in the light of the words employed in them and there cannot be any addition or subtraction from the statutory provisions.

14.4 As per the law laid down by this Court in catena of decisions, in the taxing statute, it is the plain language of the provision that has to be preferred, where language is plain and is capable of determining defined meaning. Strict interpretation to the provision is to be accorded to each case on hand. Purposive interpretation can be given only when there is an ambiguity in the statutory provision or it alleges to absurd results, which is so not found in the present case.

14.5 In the present case, the intention of the State to provide the incentive under the incentive policy was to give benefit of exemption from payment of purchase tax was to the specific class of industries and, more particularly, as per the list of ‘eligible industries’. Exemption was not available to the industries listed in the ‘ineligible’ industries. It was never the intension of the State Government while framing the incentive policy to grant the benefit of exemption to ‘ineligible industries’ like the power producing industries like the EPL, which as such was put in the list of ‘ineligible’ industries.

14.6 Now, so far as the submission on behalf of the respondent that in the event of obscure in a provision in a fiscal statute, construction favourable to the assessee should be adopted is concerned, the said principle shall not be applicable to construction of an exemption notification, as it is clear and not ambiguous. Thus, it will be for the assessee to show that he comes within the purview of the notification. Eligibility clause, it is well settled, in relation to exemption notification must be given effect to as per the language and not to expand the scope deviating from the language. There is a vast difference and distinction between a charging provision in a fiscal statute and an exemption notification.”

4.6 With the above observations of the Apex Court we consider the entry at S No 13 (c) of the Exemption Notification No 25/2012-ST., what has been exempted from payment of the service tax by the said entry is a building owned by an entity registered under section 12 AA of the Income tax Act, 1961(43 of 1961) and meant predominantly for religious use by general public. Undisputedly the appellant is an entity registered under section 12AA of Income Tax Act, 1961 (43 of 1961), and the premises held by them are meant predominantly for religious use by general public. Thus in our view the appellant are entity who are eligible to claim the benefit of this exemption. revenue also do not dispute this aspect. In the case of Talanpur Ramsabha Bhavan [2020=TIOL-1307-CESTAT-Del] following has been held:

“8. Having considered the rival contentions, I am satisfied that the appellant is in possession of the certificate of registration under Section 12A(a) read with Section 12AA of the Income Tax Act. The certificate is granted under Section 12A and the procedure for grant of certificate is given in Section 12AA of the Income Tax Act. Further, it is evident from the certificate of registration dated 8-12-1998, that the appellant is having the status of being registered under the provisions of Section 12AA of the Income Tax Act. Further, the appellant has also led evidence that they are continuing the status as the Charitable Trust/Organization, as they have been granted exemption in their assessments for the financial years 2014-15 and 2015-16 by the Income Tax authorities which is applicable to Charitable Trust registered under Section 12AA, as is evident from the intimation under Section 143(1) of the Income Tax Act issued by the Income Tax Department. Accordingly, I allow the appeal and set aside the impugned order.”

4.7 The only objection which has been raised is to the word “building” used in the notification whereas appellant are claiming exemption in respect of shop and flats purchased by them from the M/s Yog Reality. In the impugned order and during the course of arguments learned authorized representative has sought to distinguish the decisions of Asha Murarka & Others {Manu/WB/0282/2015 and in the case of Notified Area Committee Nangal Township [MANU/SC/0991/1999 from the facts of following case and have argued that as per this decision a flat in a building should be construed as separate unit. A flat is in building. Multi storey buildings are divided into flats or units.

4.7 In the case of Notified Area Committee Nangal Township [AIR 1999 SC 2569] Hon’ble Apex Court has held as follows:

“We do not think that the Committee is right in its approach. If we may refer to the definition of the ‘building’, it means any house used for the purpose of human habilitation. The term ‘house’ in the present case would mean a dwelling house intended for human habilitation. It is not disputed that each quarter or bungalow is allotted to a separate employee who lives therein with his family. Simply because some quarters or some bungalows have common wall separating each other would not mean that that quarter or bungalow ceases to be a house. A house is a place of dwelling or habilitation. It is difficult to accept the proposition that quarters in one row having common wall though each separating the other would mean one building for the purpose of arriving at the annual value. We do not think that any argument is needed for us to hold that each such quarter or bungalow for the residence of employees of the Board would fall within the definition of ‘building’. Stand of the Committee appears to us is rather incongruous. Just to get more revenue, the Committee could not change its stand and put interpretation on the term ‘building’ which is incomprehensible. The Committee was not justified in clubbing all the quarters/bungalows in one block together and term that as ‘building’.”

4.8 After taking note of this decision, Hon’ble High Court of Rajasthan has in the case of Bharat Petroleum Corporation [RLW 2008 (1) Raj 439] held as follows:

“18. More than hundred years ago, Earl of Halsbury L.C. stated in the case of Grant v. Langston that the word “house” has acquired an artificial meaning. The word is no longer the expression of a simple idea; but to ascertain its meaning one must understand the subject matter with respect to which it is used in order to arrive at the sense in which it is employed in a statute. Each flat in a multi-storied building is a separate occupation and is a separate place of dwelling and habitation with the separate entry.

19. Seen thus, it is difficult to uphold the contention of State that group of flats in a multi-storied building owned by one person constitute one ‘building’ within the meaning of Section 2(3). For all legal and ordinary purposes, each separate flat in a multi-storied building would constitute a separate house or for that matter a separate building under Section 2(3) since each of such flat is separate and. there is no nexus with the flat above or below or side by side. There is no common functionality as such.

4.9 Hon’ble Supreme Court has in case of The Indian Oil Corporation Ltd. [1991 Supp (2) SCC 18] referred to various dictionary meaning of the word “building” and has observed as follows:

“9. In Blacks Law dictionary, Fifth Edition, the word ‘building’ has been defined thus:

Structure designed for habitation, shelter, storage, trade, manufacture, religion, business, education and the like. A structure or edifice enclosing a space within its walls and usually, but not necessarily, covered with a roof.

10. In Webster Comprehensive Dictionary, International Edition, ‘building’ has been defined thus:

An edifice for any use; that which is built, as a dwelling house, barn, etc. (2) The occupation, business or art of constructing. (3) The act or process of erecting or establishing.

11. Building has been defined in Stroud’s Judicial Dictionary, fourth Edition at 334. What is a ‘building’ must always be a question of degree and circumstances; its “ordinary and usual meaning is, a block of brick or stone work, covered in by a roof”. The ordinary and natural meaning of the word ‘building’ includes the fabric and the ground on which it stands.

12. In the Oxford English Dictionary the word ‘building’ has been defined to mean, “that which is built, structure, edifice, structure of the nature of a house built where it is to stand”. In D.C. Gouse & Co. etc. v. State of Kerala and Anr. etc. . In the context of Entry 49, List Ii of VII schedule to the Constitution (Taxes on lands and buildings) under the Kerala Buildings Act, 1975, this Court held that the word ‘building’ means “that which is built; a structure edifice”. The natural or ordinary meaning of a building is, “a fabric of which it is composed, the ground upon which its walls stand and the ground embraced within those walls”. Under the inclusive definition of that Act it was held that a house, out­house, garage or any other structure cannot be erected without the ground on which it is to stand. The expression ‘building’ includes the fabric of which it is composed, the ground upon which its walls stand and the ground within those walls because the ground would not have a separate existence, apart from the building.

13. Thus it is clear that a tank to be a building must be a structure designed for either habitation or shelter for human habitation or storage of inanimate objects in storehouse or stable for horses shed or a hut etc. within the four corners of the walls built with masonary or otherwise with ingress or egress. The word building must be given its ordinary natural meaning ascribable to it including the fabric and the ground on which it stands. On a mere look at the tank, by no stretch of imagination, it could be said to be a building.”

4.10 In view of the decisions as above we are of the view the word “building” used in entry at Sl No 13 (c) of the Notification No 25/2012-ST is wide enough cover the shop and flats purchased by the appellant in the project being developed by the M/s Yog Reality. That being so benefit of exemption under the said entry cannot be denied to the appellant on this ground.

4.11 Authorized representative has raise the issue of unjust enrichment. However he has failed to specify how the same can be applied in the present case where the claimant is recipient of the services and the consumer of service.

4.12 Thus we do not find any merits in the impugned order on the grounds challenged in this appeal.

5.1 Appeal is allowed.

Download Judgment/Order

Join Taxguru’s Network for Latest updates on Income Tax, GST, Company Law, Corporate Laws and other related subjects.

Join us on Whatsapp

taxguru on whatsapp GROUP LINK

Join us on Whatsapp

taxguru on whatsapp GROUP LINK

Join us on Whatsapp

taxguru on whatsapp GROUP LINK

Join us on Whatsapp

taxguru on whatsapp GROUP LINK

Join us on Whatsapp

taxguru on whatsapp GROUP LINK

Join us on Whatsapp

taxguru on whatsapp GROUP LINK

Join us on Whatsapp

taxguru on whatsapp GROUP LINK

Join us on Whatsapp

taxguru on whatsapp GROUP LINK

Join us on Whatsapp

taxguru on whatsapp GROUP LINK

Join us on Whatsapp

taxguru on whatsapp GROUP LINK

Join us on Telegram

taxguru on telegram GROUP LINK

Review us on Google

More Under Service Tax

Leave a Comment

Your email address will not be published. Required fields are marked *

Search Posts by Date

February 2023
M T W T F S S
 12345
6789101112
13141516171819
20212223242526
2728