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2014 (7) TMI 665 - HC - Service TaxReimbursement of service tax from the recipient of service - mutual contract - refusal of reimburse the service tax on the ground that service tax was not paid actually but was paid through cenvat credit - hiring of Heavy Earth-Moving Machinery for removal of Overburden, extraction and transportation of coal - corrigendum/amendment to contract - Held that:- The corrigendum/amendment makes it clear that service tax will be reimbursed only on production of original challan having made cash remittance of such service tax. There is no force in the contention of learned senior counsel for the petitioners that by virtue of corrigendum/amendment to clause in respect of service tax, the contract agreement for different tenders was unilaterally altered - corrigendum/amendment dated 2nd March, 2012 to clause in respect of service tax was issued clarifying that the service tax will be reimbursed only if paid through cash remittance or e-payment. Therefore, the corrigendum/amendment dated March 2, 2012 does not amount to unilateral alteration of the terms and conditions of the contract and is only clarificatory. Payment or non-payment of excise duty by respondent-BCCL on the input material/machinery is a serious disputed question of fact. The respondent-BCCL has taken a stand that the contractor has been submitting bill for reimbursement of service tax including other contracts of other organizations, in which, similar order of transportation contracts are included in the lump-sum CENVAT which the contractor claimed and thus, the respondent-BCCL insisted on furnishing documentary proof of payment of service tax by cash remittance by the contractor. Thus whether the contractor has any CENVAT credit in relation to the present contract agreement with BCCL is also a question of fact which has been seriously disputed by the respondent-BCCL. Since as per terms of the contract, alternative remedy for settling the dispute is available to the parties, and since we have already held that the action of the respondent-BCCL in issuing the corrigendum/amendment is not arbitrary, these writ petitions cannot be entertained and the writ petitions are liable to be dismissed - Decided against the petitioner.
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