TaxTMI 
TaxTMI 
2017 (11) TMI 544
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd Jabalpur for execution of works relating to supplying, laying, jointing, testing and commissioning of sewers in different areas of Bhopal and Jabalpur. The appellant raised running bills on the basis of work performed by it. The appellant did not charge service tax in its running bills, from the Municipal Corporations. However, as doubts prevailed in the industry whether the activities of the nature carried out by the appellant was liable to service tax. The appellant paid the service tad for the said work under the category of 'Work Contract Service' from its own pocket without collecting it from the Municipal Corporation. Service tax return was accepted by the department. Later, by following the ratio laid down in the case of Indian Hu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sive of all duties, the meaning is that the price includes only the duty payable. We cannot presume that the excess duty paid by mistake is passed on to the buyer. The Hon'ble Tribunal in the case of Cimmco Ltd. v. Collector of Central Excise, Jaipur [1999 (107) E.L.T. 246 (Tribunal)] had interpreted the term inclusive of all duties and tax and it has been held therein that condition in work order that the words inclusive of all duties, taxes does not mean that excise duty is covered by it especially when appellant has been taking a stand from the beginning as to non-excisability of goods. It is worthwhile to briefly mention the facts of the case. In the above-mentioned case, the appellant had a contract with M/s. I.O.C. Ltd. for supply of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lier raising any demand at a later stage on the ground that certain duties are to be paid. The expression rates are inclusive of all duties and taxes have to be understood as applicable to only duties and taxes which are payable. The Tribunal held in the above mentioned case that there is no unjust enrichment and the appellants would be entitled to obtain refund. The ratio of the above case is clearly applicable here. In the present case also, the sale price, no doubt, includes all statutory levies payable. That means, after some time the seller should not come to the buyer for extra amounts on the plea that further duty has to be paid to the Department. The presumption that the sale price includes duty erroneously paid in excess has no b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ice tax cases. The Hon'ble High Court has held that, if there is no authority to collect service tax by the department, it would not give them the authority to retain the amount paid which was initially not payable by them. 15. In the present case, the assessee-Appellants were rendering liaisoning service. The said services were not liable to Service Tax at the relevant time. Hence, the Department would not be in a position to collect service tax on the said activities since the same is not leviable. Consequently, in terms of the law laid down by the Hon'ble Kerala High Court (supra), the Government will have no authority to retain the said amount and will have to be refunded. 16. It may also be mentioned that in the case of Hin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....imitation (Section 11B of the Act) is not applicable. Hence, we set aside the impugned orders and direct the jurisdictional Commissioner to return the deposited amount, as per law. 20. In the result, both the appeals filed by the assessee-Appellants are allowed. 14. On perusal of the above decisions of the Hon'ble High Court and the Tribunal, it is seen that the limitation under section 11B of the Central Excise Act would not be applicable in case of payment of tax mistakenly. Further, the principle of unjust enrichment would not apply in the case of composite contract price, as applicable in the present case. The ld. A.R. on behalf of the Revenue strongly relied upon the decision of the Hon'ble Supreme Court in the case of Mafatlal In....