TMI Blog2018 (5) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... amounts towards maintenance charges and operation charges and has specifically certified that GMR Energy Vemagiri Power Generation Limited has not passed on the service tax liability on the operations part to any one and has borne the burden of the service tax. The certificate which was produced before the lower authorities is also produced before the Tribunal and on perusal of the same, it is found that the said certificate clearly indicates the details on the basis of which the Chartered Accountant has come to a conclusion the amount for which refund claim is preferred, is borne by appellant assessee - decided in favor of assessee. Appeal allowed - decided in favor of assessee. - Appeals Number ST/28202/2013,ST/28251/2013,ST/23012/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into an agreement with Korea Plant Service Engineering Company Limited (hereinafter referred to as KPS) for operation and maintenance of power plant. The said KPS was paid a consideration by the appellant for such operation and maintenance of power plant. KPS assessed the service tax liability on their own and discharged the same and have not contested the said service tax liability. On noticing that the agreement entered by the appellant and KPS is a composite contract, appellant filed a refund claim of the amounts paid by them to KPS as service tax in respect of operation of the power plant for the period December 2009 to March 2012, in three different claims. Show cause notices were issued to appellants GMR Energy Vemagiri Power Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said service tax which is not payable to the Government of India. It is his submission that the adjudicating authority has erred in rejecting the refund claim as hit by limitation which is against the law as laid down by Hon ble High Court of Bombay recently in the case of Parijat Construction [2017-TIOL-2170-HCMUM- ST)] and by the Hon ble High Court of Delhi in the case of Hero Motorcorp Limited [2014(302) ELT 501 (Del.)]. He relied upon the judgment of Hon ble High Court of Delhi for the proposition as to whether burden of duty passed on to the customer or otherwise, has to be ascertained if there is a Chartered Accountant Certificate who certifies the factual position in that it has to be accepted. It is his submission that appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicate that GMR Energy Vemagiri Power Generation Limited has collected the service tax paid by them to KPS from APSEB. He would submit that the same arguments would also apply in the case of appeals filed by GMR Energy Vemagiri Power Generation Limited. 7. We gave anxious consideration to the submissions made by both sides and perused the records. 8. On perusal of records, it is transpires that GMR Energy Vemagiri Power Generation Limited had entered into a contract with KPS for operation and maintenance of the power plant; this agreement indicates in the annexures amount to be paid for operation and for maintenance services. It is also further noticed that the said KPS had discharged the service tax liability on their own, received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation or otherwise. The adjudicating authority has held that the refund claim for the period has been hit by limitation as the amounts discharged by KPS to the Govt. of India is the relevant date from where the limitation period needs to be worked out. We do not agree with the findings recorded by the adjudicating authority in the appeals filed by GMR Energy Vemagiri Power Generation Limited, for the simple reason, that as we have come to a conclusion that service tax liability on the operations portion is not due to the Government, which would mean that provisions of Section 11B of Central Excise Act, 1944 which lays down the period within which refund claim has to be filed, will not apply to the cases in hand. This is the law settled by H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in rejecting the refund claim on the ground that it was barred by limitation. We are, therefore, of the view that the impugned order is unsustainable. 11. Respectfully following the same, we have to hold that the question of limitation does not arise in the cases in hand. 12. Now addressing the question of unjust enrichment, we find that it is the case of Revenue in their appeal and also in the appeals of GMR Energy Vemagiri Power Generation Limited that the doctrine of unjust enrichment is not satisfied as the power purchase agreement entered with APSEB indicates only one price towards the purchase of power from GMR Energy Vemagiri Power Generation Limited, in all probabilities the service tax element for which refund has been c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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