9911796707
TMI Blog2014 (9) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... trial Construction service" defined under Section 65(105)(25b) of the Finance Act, 1994. The definition of this service excluded commercial/industrial construction services provided in respect of roads and, accordingly, the amounts charged by the appellant for installation of raised pavements for the National Highway were not to be included in the taxable value for the purpose of payment of service tax. However, by a mistake of law, they included such amounts also in the taxable value and paid service tax. The refund claim in question was filed upon realization of this mistake. 3. The original authority vide Order-in-Original No. 3/2009, sanctioned the refund under Section 11B of the Central Excise Act after holding that the party had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued that it cannot be gainsaid that the appellant's customer who received the full invoice value also assumed the tax burden. 7. After giving careful consideration to the submissions, I find that, if the refund in question is granted to the appellant, they will be unjustly enriched. The appellant accepted the Assistant Commissioner's order which contains the following calculation of "refundable" tax : Sl No. in Annexure Value in the invoice Value adopted for ST purpose Amount of ST refund claimed Actual eligible amount 1. 322000 286579 35421 35421 2. 427070 380091 46979 46979 3. 244520 61187 7563 (calculated on 61187 Including ST) 6731 (calculated on 54456) 4. 87360 77750 9610 9610 5. 227465 202443 25022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the taxable service has been rendered. The appellant however, chose not to show the service tax amount in any of the invoices. Therefore, under Section 12B, the appellant will be deemed to have passed on the full incidence of tax to the service recipient inasmuch as the contrary has not been proved by the appellant. As I have already indicated, there is nothing in the work order to show that the service recipient was not liable to pay service tax to the appellant, nor can the appellant evade a statutory liability on the strength of anything contained in the work order (contract). It is trite law that private parties cannot contract to evade or sidestep statutory obligations. The appellant was obliged under Section 12A to show service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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