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2022 (2) TMI 902 - AT - Service TaxRefund of service tax paid - amount of tax was paid in mistake/erroneously - refund denied on the ground that the appellants were availing the benefit of Notification No.19/2003 dated 21.8.2003 and were paying service tax only on 33% of gross amount charged from their customer - Notification No.32/2007 dated 23.5.2007 is only prospective or not - HELD THAT:- From the records of the case, it is clear that the appellants have entered into works contract with KTPCL. It is not the case of the department that the contracts undertaken by the appellants are not works contract. Therefore, payment of service tax by the appellant under some other heading albeit by a mistake could not render the service taxable. The appellants have demonstrated that the works undertaken by them were under works contract and due VAT was paid on the very same work contracts. It is settled principle of law that if a new levy comes into existence on a specific date, the same set of activity cannot be held to be taxable under a different heading prior to the date of coming into existence of the levy. Apex Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] has categorically held that works contract cannot be taxed before 1.6.2007. The appellants were not required to pay service tax and any tax thus paid under a mistaken notion of law is refundable - Appeal allowed - decided in favor of appellant.
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