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2017 (12) TMI 1032 - AT - Service TaxRefund claim - service tax paid on reverse charge basis in terms of Section 66A, mistakenly, on non-taxable activity - denial on the ground of unjust enrichment - Held that: - the tax entry on “supply of tangible goods for use” itself came into effect only from 16/05/2008. The tax liability under such entry is not even existing at the time when the appellant entered into contract with DMRC. Hence, the question of factoring such tax liability in the contract price is not possible. Reliance placed in the case of Himatsingka Seide Ltd. vs. CC, Bangalore [2005 (3) TMI 333 - CESTAT, BANGALORE], where the Tribunal held that there can be no presumption that duty collected in excess of what is payable is passed on to the buyers. Whenever there is a composite price inclusive of all duties, the meaning is the price includes only the duty payable. No presumption can be made that excess duty paid by mistake is passed on to the buyer - In the present case, there is not even a tax liability on the date of conclusion of contract with DMRC. The lower authorities fell in error in holding against the appellant on the question of unjust enrichment - appeal allowed - decided in favor of appellant.
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