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2019 (9) TMI 117 - AT - Service TaxRefund claim - unjust enrichment - Retrospective exemption - Works contract service - Management, Maintenance or Repair Service - HELD THAT:- No service tax shall be levied or collected in respect of management, maintenance or repair of roads, during the period from 16.6.2005 to 26.7.2009 (both days inclusive). The period involved in the present appeal is also 16.6.2005 to 26.7.2009. It seems that the learned commissioner rejected the refund of service tax on the ground of unjust enrichment because it has been recorded in the impugned order that the appellants have failed to produce the letter from NHAI that they have not paid the service tax to the Appellant. The appellants have not received any amount against service tax from NHAI and that they have paid the service tax amount of ₹ 6,19,766/- out of their own pocket under the category of ‘Management Maintenance and Repair’ service for the period 2005-06 to 2009-10. According to us this evidence is sufficient to establish that the service tax has not been passed on to the customer i.e. NHAI by the Appellants - Appellants are eligible for refund of service tax. Penalty u/s 78 - HELD THAT:- Had the service tax been not there, no penalty would have been imposed on the Appellants. Only because the appellants did not challenge the imposition of penalty and deposited the same without challenging it, cannot be a ground to refund the penalty because without demanding service tax, penalty cannot be imposed. Once service tax is set aside or refunded, penalty cannot survive. Therefore since the Service tax itself has been ordered to be refunded as aforesaid, the penalty deposited by the Appellant for default in not depositing the service tax on time, is also liable to be refunded. Appeal allowed - decided in favor of appellant.
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