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2016 (8) TMI 591 - CESTAT NEW DELHI

2016 (8) TMI 591 - CESTAT NEW DELHI - 2016 (45) S.T.R. 113 (Tri. - Del.) - Refund of service tax paid on GTA services - service tax was paid directly by the provider of services whereas it was the liability of the recipient under reverse charge can the liability be shifted to others by means of a private contract/agreement - transport of crushed stone, dust and coarse sand - Rule 2 (1)(d)(v) of Service Tax Rules, 1994 Held that: - Both sides agree that the service recipient is body corporate .....

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be such an amount as with additional of tax payable is equal to the gross amount charged Held that: - Section 67(2) ibid is not relevant in the present case as it deals with the valuation of service which is not the issue in this case. - Service tax not payable case remanded back appeal allowed refund granted - principle of unjust enrichment to be satisfied. - ST/50471/2016-ST[SM] - Final Order No.52687/2016 - Dated:- 27-6-2016 - Mr. R.K. Singh, Member (Technical) Mr. R.M. Saxena, .....

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EIEL). As per the said agreement (para 7 thereof), it was stated that ... We exempted from service tax as per NHAI guidelines. However, if the same is not applicable, it will be to ERA s account. The appellant charged the amount for transporting crushed stone, dust and coarse sand, as per the requirements of EIEL, (which was constructing roads) and did not charge any service tax on the invoices. The audit team visited the appellant premises and vide Audit Memo dated 17.01.2015 (in para-6), state .....

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roduced below:- 6. Please refer to your point no.6 the said amount relates to service provided by us to M/s. Era Infra Engg. Ltd. against agreement minutes of meeting 29.12.2010 (Copy of the said Agreement/Minutes of the Meeting enclosed), Please also refer to the point No. 7 of the said agreement which shifts our liability to service tax in the said regard on consignee M/s. Era Infra Engg. Ltd. , as we are the service provider & Era Infra Engg. Ltd. is the consignee & notified company, .....

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ervice recipient, i.e., M/s. EIEL and therefore, the appellant is entitled for refund. (iii) As the amount was deposited under duress, and not passed on, unjust enrichment was not involved. 4. Ld. Departmental Representative, on the other hand, submits that the liability to pay service tax to the Govt. cannot be shifted to others by means of a private contract/agreement. Rule 2(1)(d)(v) of the said Rules essentially gives an option to the service provider not to pay service tax in which case, th .....

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e appellant as per Section 67 (2) ibid, the service tax has to be recovered from the appellant as there is no evidence that the service recipient has paid the service tax. 5. I have considered the contentions of both sides. It is right to say that the liability of service tax is determined by the statute and that liability cannot be shifted by means of mutual agreement/contract between two private parties. Thus, the mention in the contract between the appellant and EIEL that in case there is ser .....

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rned by the Factories Act, 1948 (63 of 1948); (b) any company formed or registered under the Companies Act, 1956 (1 of 1956); (c) any corporation established by or under any law; (d) any society registered under the Societies Registration Acct, 1860 (21 of 1860) or under any law corresponding to that Act in force in any part of India; (e) any co-operative society established by or under any law; (f) any dealer of excisable goods, who is registered under the Central Excise Act, 1944 (1 of 1944) o .....

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ion to taxable service provided by the appellant is the service recipient, namely, EIEL. Thus, it is clear that the legal liability to pay service tax does not rest on the appellant. Section 67(2) ibid is not relevant in the present case as it deals with the valuation of service which is not the issue in this case. It is also seen that the appellant has not charged any service tax from the service recipient and therefore a possible argument that the service tax collected has to be deposited in t .....

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