2011 (6) TMI 383

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....ice tax separately in the invoice but nevertheless paid the service tax. Subsequently, realizing that service tax is not payable, a refund claim was filed which was sanctioned by the Assistant Commissioner. The Commissioner in the impugned order in exercise of his power under Section 84 of the Finance Act, has taken a view that the appellant was not eligible for refund since the appellant has failed to produce the conclusive evidence that amount collected by them was not inclusive of service tax. 2. The ld. Consultant on behalf of the appellant submitted that in the case of roads, the service tax was not at all payable and in the definition of commercial or industrial construction under Section 65(105)(25b) itself, such services are exclud....

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....ive of taxes. Therefore the view taken by the Commissioner that appellant has to show that the refund is not barred by unjust enrichment is justified. 4. I have considered the submissions made by both sides. Admittedly, the service tax was paid by the appellant without any compulsion from anyone. Further the contract also reads that the contract is for lump-sum amount inclusive of all taxes. No doubt, service tax, as submitted by the ld. Consultant, is not leviable. Nevertheless, the question arises whether the amount collected by the appellant from the customers can be considered to be inclusive of service tax. The very fact that appellant paid the amount without any consultation or hesitation or compulsion would show that while working o....