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2018 (11) TMI 307 - AT - Service TaxDate of effectiveness of service - services of erection of transmission tower at site - Whether the services of erection of transmission tower at site is covered by taxable services under the head Erection, Commissioning and Installation with effect from 10.09.2001 or with effect from 01.05.2006 which is date of amendment of statutory definition of the said services? - Held that:- As per the amended definition with effect from 01/05/2006, Erection, Commissioning or Installation of structures, whether pre-fabricated or otherwise was added with effect from 01/05/2006 only. Accordingly, the Service Tax prior to 01/05/2006 was not leviable on the services provided by them - this particular service i.e., Erection, Commissioning or Installation of structures was specifically incorporated in the definition of Erection, Commissioning or Installation service with effect from 01/05/2006. Therefore, it is clear that this service was not covered under the definition of Erection, Commissioning or Installation prior to 01/05/2006. Refund claim - duty paid under protest or not? - time limitation - unjust enrichment - Held that:- Once a letter dated 14/10/2005 was filed towards the payment of Service Tax under protest, in our considerate view, the protest was in continuation and whatever Service Tax was paid, that will be treated as under protest. Accordingly, time bar will not apply in this case - Only by proving that the incidence was not passed on to the service provider is not sufficient but it is also required that the incidence of such service tax was not passed on to any other persons also which can be established from the books of accounts. Therefore, the appellant is required to establish that incidence of service tax paid by them was not passed on to any other persons by providing the sufficient evidence - matter requires reexamination. Whether the appellant’s service is covered under Work Contract service. If so, whether it is taxable prior to 01.06.2007? - Held that:- To conclusively decide whether the service is of works contract or other service, some vital facts need to be verified such as that whether the service was provided along with material, whether the appellant have discharged the VAT/WCT to the concerned State Government. On ascertaining the above facts it can be decided whether the service is of works contract or otherwise. If it is found that the service is of works contract, it is not taxable prior to 01/06/2007 - Matter on remand. Matter remanded to the Adjudicating Authority for passing a fresh order - appeal allowed by way of remand.
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