TMI Blog2023 (6) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... en the ground of unjust enrichment at the OIO stage without issuing SCN - HELD THAT:- The Appellant has been made to pay the Service Tax by their client. It is also on record that on similar projects pertaining to 17 other projects executed by them for Government of Andhra Pradesh no Service Tax was paid by them. It is also not in dispute that the Department has not initiated any action to recover any Service Tax in respect of other 17 projects undertaken by the Appellant. Therefore, admittedly, the Department also agrees that these projects are fully exempt from payment of Service Tax. Now coming to the refund claims filed by the Appellant, it is clear that even though no Service Tax was payable the same was paid only on account of the wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Show Cause Notice. The Adjudicating Authority has failed to follow the principles of natural justice and even the Commissioner (Appeals) has remained silent on this issue. The impugned Order is liable to be set aside even on this count. Appeal allowed. - HON'BLE MR. R. MURALIDHAR ( JUDICIAL ) And HON'BLE MR. A. K. JYOTISHI, MEMBER ( TECHNICAL ) Shri K. A. S. V. Prasad , Advocate for the Appellant Shri V. R. Pavan Kumar , AR for the Respondent ORDER [ Order per : R. MURALIDHAR ] The Appellant has been providing the services of Works Contract/ EPC for various water supply improvement schemes announced by the Government of Andhra Pradesh. While such services are exempt from Service Tax payment, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e OIO has been passed on the ground that the refund claim was filed beyond a period of one year and the Department has also taken the ground of unjust enrichment at the OIO stage without issuing SCN. 4. The learned Counsel submits that the Department has gone by date of deduction of the amount by the client and not by the date of actual remittance by way of GAR-7 Challans to come to the conclusion that the refund claim was filed beyond the permissible period of one year. The details of the amounts released by the client and remitted to the Department are as under: Date of cheque given by the client Date of GAR-7 Challan remittance Amount 05.03.2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the above submissions, he prays that the Appeals may be allowed and they may be granted consequential relief. 8. The learned AR submits that though no SCN was issued, the Appellant was granted Personal Hearing and the submissions made by them therein was taken up into account. He reiterates the findings of the Adjudicating Authority to submit that refund claims were rejected correctly. 9. Heard both sides. 10. As can be seen from the records, the Appellant has been made to pay the Service Tax by their client. It is also on record that on similar projects pertaining to 17 other projects executed by them for Government of Andhra Pradesh no Service Tax was paid by them. It is also not in dispute that the Department has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Department and it is not even denying the nature of construction/services rendered by the petitioner was exempted from to payment of Service Tax. What one has to see is whether the amount paid by petitioner under mistaken notion was payable by the petitioner. Though under Finance Act, 1994 such service tax was payable by virtue of notification, they were not liable to pay, as there was exemption to pay such tax because of the nature of the institution for which they have made construction and rendered services. In other words, if the respondent had not paid those amounts, the authority could not have demanded the petitioner to make such payment. In other words, authority lacked authority to levy and collect such service tax. Incase, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e client had forced the Appellant to make the remittance to the Government. In such a case, when it is clear that no amount was recovered from the client and this amount has been remitted by way of GAR-7 Challans, there is no possibility of any unjust enrichment accruing to the Appellant, if refund claim is sanctioned. 12. Coming to the aspect of non-serving of SCN, it has been held by Hon ble High Court and Hon ble Supreme Court in catena of decisions that by not issuing the SCN the entire proceedings are rendered vitiated. In this case, the Appellant was not put to notice as to on what count the refund claim was sought to be rejected. In such case, the Appellant had attended the Personal Hearing without even being aware as to on what g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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