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TMI Blog2018 (5) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... T/28251/2013 O-I-A No: 27 & 28/2013 (V-II)ST, dated 13.08.2013 ST/23012/2014 O-I-A No. 09/2014 (V-II) ST, dated 05.06.2014 ST/30876/2017 O-I-A No. VIZ-EXCUS-002-APP-012-17-2018 Appeal No. ST/30876/2017 is filed by Revenue against Order-in- Appeal No. VIZ-EXCUS-002-APP-012-17-2018. 2. The issue that falls for consideration in all these appeals of the appellant M/s GMR Energy Vemagiri Power Generation Limited is whether the refund claims filed by them are hit by limitation or otherwise and in the appeal filed by Revenue, whether the first appellate authority was correct in holding that refund claims are not hit by limitation and allowed the appeals. 3. The relevant facts that arise for consideration, after filtering out unnecessary de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered Accountant certificate to apportion the amount for operation and maintenance separately and allowed the appeal which is being contested by the Revenue. 5. Ld. Counsel appearing for GMR Energy Vemagiri Power Generation Limited submits that appellant is not required to pay any service tax on the operation portion of the contract entered into by them for operation and maintenance charges paid to KPS. He submits that the law is well settled by this Tribunal in Final Order No: 40862-40866/2017, dated 29.05.2017 and also in final order No. 40744-40752/2017, dated 23.05.2017. It is his submission that once the service tax liability is not to be discharged by the service provider and having done so and collected from the appellant, appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and maintenance. It is his further submission that the tax paid and refund claim of an amount by the appellant GMR Energy Vemagiri Power Generation Limited is artificial one and is not supported by any evidence. It is his further submission that the first appellate authority has gone beyond the dictum of deciding the appeal without considering the legal position and that the first appellate authority has wrongly allowed the refunds of GMR Energy Vemagiri Power Generation Limited holding that amounts paid to KPS was without any basis and has also wrongly held that the doctrine of unjust enrichment is satisfied; the power purchase agreement entered by GMR Energy Vemagiri Power Generation Limited with APSEB only indicates the amount to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hyundai Heavy Co. Ltd. in Final Order No. 40862-40866/2017, dt. 29.05.2017, following their own order No. 40744-40752/2017, dated 23.05.2017, the Bench has extracted the entire ratio in order dated 29.05.2017. That no service tax liability arises on operation charges of the fees paid to an entity is the ratio decided by the Tribunal On this issue, we hold that GMR Energy Vemagiri Power Generation Limited has made out the case that service tax liability discharged by them to KPS is not due to the Government of India, and they have borne the effect of the same, we hold that they are eligible for filing the refund claims. 10. This takes us to the next question as to whether the refund claims filed by GMR Energy Vemagiri Power Generation L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake of law. The decision of the Supreme Court in the case of Collector of C.E., Chandigarh Vs. Doaba Co-Operative Sugar Mills (Supra) relied upon by the Appellate Tribunal has in applying Section 11 B, limitation made an exception in case of refund claims where the payment of duty was under a mistake of law. We are of the view that the impugned order is erroneous in that it applies the limitation prescribed under Section 11 of the Act to the present case were admittedly Appellant had paid a service tax on Commercial or Industrial Construction 32-58-CEXA-306-16-2017.DOC Service even though such service is not leviable to service tax. We are of the view that the decisions relied upon by the Appellate Tribunal do not support the case of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or which refund claim is preferred, is borne by appellant assessee. We find that the law is settled by Hon'ble High Court of Delhi in the case of Hero Motorcorp Limited (supra) on this issue, which is in favour of GMR Energy Vemagiri Power Generation Limited and has been correctly followed by the first appellate authority in the appeals filed by Revenue. We do not find any reason to hold against GMR Energy Vemagiri Power Generation Limited on this point. 13. In view of the foregoing and in the facts and circumstances of the case, we hold that appeals filed by GMR Energy Vemagiri Power Generation Limited needs to be accepted and we do so and set aside the impugned orders and the appeals filed by Revenue are liable to be rejected which we do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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