TMI Blog2019 (9) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... e not paid the service tax to the Appellant. The appellants have not received any amount against service tax from NHAI and that they have paid the service tax amount of ₹ 6,19,766/- out of their own pocket under the category of Management Maintenance and Repair service for the period 2005-06 to 2009-10. According to us this evidence is sufficient to establish that the service tax has not been passed on to the customer i.e. NHAI by the Appellants - Appellants are eligible for refund of service tax. Penalty u/s 78 - HELD THAT:- Had the service tax been not there, no penalty would have been imposed on the Appellants. Only because the appellants did not challenge the imposition of penalty and deposited the same without challenging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a formal agreement to that effect was executed on 31.08.2005. After the audit of the appellant conducted by the department, a show cause notice dated 21.06.2013 was issued to the Appellant for failure to pay service tax of ₹ 36,93,008/- on the value received by them from NHAI during the period 16.6.2005 to 26.7.2009 and also for disallowance of Cenvat credit of ₹ 3,93,008/-. The same was adjudicated vide Adjudication Order dated 26.2.2009 confirming the demand of service tax of ₹ 36,93,008/- with equal amount of penalty u/s. 78, Finance Act, 1994 and ₹ 5,000/- u/s. 77 ibid and also disallowing the Cenvat credit of ₹ 3,93,351/-. On Appeal filed by the Appellant, the Commissioner (Appeals) vide order dated 5.8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order-in-Original dated 6.5.2013. On the other hand on 21.06.2013 another show cause notice was issued to the Appellant for recovery of the amount of ₹ 12,59,398/- with interest. 4. Learned counsel for the appellant submitted that the learned Commissioner erred in rejecting the refund claim on the ground that the appellants failed to establish that the refund would not be hit by unjust enrichment and that the refund of the amount of penalty paid by the appellants in compliance with the earlier order dated 05.08.2009 of the Commissioner, cannot be granted since the appellant had not appealed against the said order of imposing penalty upon them and the same attained finality. According to learned counsel, the entire issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act, 1994 whereas the same was filed in Form-EA-2 as per Section 35E(4) of Central Excise Act, 1944. The said Appeal therefore should have been rejected by the learned Commissioner on this ground alone. In support of his submissions, the learned counsel produced various decisions. Per contra learned Authorised Representative on behalf of Revenue reiterated the findings recorded in the impugned order and prayed for dismissal of Appeal. 5. We have heard learned counsel for the appellant and learned Authorised Representative on behalf of Revenue and perused the Appeal Memo alongwith its annexures. In order to appreciate the issues involved in the instant Appeal we have gone through Section 97 of the Finance Act, 1994, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Maintenance and Repair service for the period 2005-06 to 2009-10. According to us this evidence is sufficient to establish that the service tax has not been passed on to the customer i.e. NHAI by the Appellants. The Hon ble High Court of Judicature at Allahabad in the matter of Delta Erectors Pvt. Ltd. vs. UOI; 2016(42) STR 238 (All.) has held that in view of provision of Section 97(1) of the Finance Act, 2012, the assessee is not liable to pay any Service Tax on the management and maintenance or repair of roads between 16.6.2005 to 26.7.2009, both dates inclusive and if any Service Tax had been collected it would be refunded. Therefore, in view of the above discussions according to us the Appellants are eligible for refund of service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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