Order Date – 22 June 2023

Parties: Gujarat Adani Institute Of Medical Sciences Vs C.C.E. & S.T.-Rajkot

Facts – 

• The Appellant, Gujarat Adani Institute of Medical Sciences, filed refund claim for refund of Service tax under Section 11-B of the Central Excise Act, 1944 paid for construction of the Medical College Building at Bhuj.
• A show cause notice dated 18.04.2011 and 25.01.2012 were issued proposing reject the refund claims under Section 11B of the Central Excise Act, 1944.

Issue – 

• Whether the appellant, as recipient of service, is eligible for refund of service tax paid by service provider?

Order – 

• The Tribunal observed that with regard to the issue, as to whether, the service recipient can claim refund of service tax, the Hon’ble Allahabad High Court, in the case of Indian Farmers Fertilizers Coop Limited 2014 (35) S.T.R. 492 (All), have ruled in affirmative.
• Further, the Section11B(2)(e) of the Central Excise Act, 1944 permit the person who has borne the tax, can file the refund claim. There is absolutely no restriction in the provision of law. In the present matter contractor collected the service tax separately from the Appellant and deposited to the Central Government Account. Since the Service tax has been borne by the Appellant, they have rightly lodged the refund claim.
• It is established that Appellant is a charitable trust and building constructed by them is not commercial and industrial construction, therefore does not fall under the category of taxable services, as the same is not used for commercial and industry but it is used for providing education.
• In view of the above judgment, it is settled that merely by charging fees or higher fees an institution which otherwise, belongs to a Charitable Trust cannot lose its identity as non-commercial entity.
• The impugned orders are set aside. The appeals are allowed.