TaxTMI 
TaxTMI 
2017 (12) TMI 1032
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....paid on such lease transaction and filed a claim for refund on 28/03/2012. A notice dated 23/04/2012 was issued to the appellant to reject the said claim. The notice listed out various deficiencies in the said claim. The matter was adjudicated by the Jurisdictional Assistant Commissioner of Service Tax. Vide order dated 11/04/2013 he rejected the claim on merit. On unjust enrichment he observed that the appellant could not have transferred the burden of service tax to any other party. On appeal, the Commissioner (Appeals) vide his order dated 29/01/2014 set aside the original order with a direction to the Assistant Commissioner to sanction the refund claim after verifying the relevant documents. Since, even after 4 months of this order, no refund was sanctioned, the appellant approached the Hon'ble Delhi High Court by filing a writ-petition No. 8759/2014. The Hon'ble High Court disposed of the writ-petition on 10/12/2014 with the direction to the Assistant Commissioner of Service Tax to complete the verification of documents and sanction the refund claimed by the petitioner within a period of 4 weeks provided there is no stay order granted by the Tribunal. The said time was extende....
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....and taxes on personnel. Pursuant to this Agreement, should any such taxes or duties be imposed on the lessor in the course of mobilization/ demobilization or during the deployment of the plant and equipment (during the execution of the Main Contract) the lessee shall reimburse the lessor for any such cost incurred. The lessee shall indemnify and hold the lessor harmless from any and all tax liabilities levied upon the lessor by the Indian Statutory /Government Authorities". As per clause - 3.7 of the agreement, "All payments due to the lessor shall be NET without the deduction of any retention and/or local taxes for any reason". Therefore, it is evident that there was no liability on the lessor to bear any kind of tax as per any Indian tax provisions. Hence, the party could not transfer the burden of service tax on the lessor. Further, the party has submitted copy of page-7 of tender document of DMRC, which states that DMRC is performing a railway project, hence exempt from service tax and accordingly they will not reimburse any kind of service tax paid by the party on any account. Therefore, it is also clear that the party could not transfer the burden of service....
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....ed to sanction the refund in pursuance of such direction. However, he credited the sanctioned refund amount to the Consumer Welfare Fund holding that the appellant will be unduly enriched if the amount is sanctioned to them. As elaborated above, we note a factual finding has been recorded by the first order-in-original dated 11/04/2013 which is categorical on the issue, though the conclusion was self-contradictory and perhaps was due to incorrect usage of words. As such, we find no justification in the second proceedings for the Original Authority to again take up the question of unjust enrichment. In any case, we are now examining the merit of such finding recorded by the lower authorities in the second round of proceedings. 5. The admitted facts are that the appellant received 4 tunnel boring machines in terms of a lease agreement which is not liable to service tax. The issue on merit is settled in favour of the appellant. The appellant claimed refund of service tax paid on reverse charge basis in terms of Section 66A, mistakenly, on such non-taxable activity. We note that the tax entry of "supply of tangible goods for use" came into force from 16/05/2008. This is much after t....
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....e clause "inclusive of duty" is put in a contract/work order only in our view to avoid any possibility of supplier raising any demand at a later stage on the ground that certain duties are to be payable. The Tribunal rejected the contention that rates are "inclusive of taxes" would led to presumption that excise duty was recovered or provided for the appellants. 9. In the present case, we note that the tax entry on "supply of tangible goods for use" itself came into effect only from 16/05/2008. The tax liability under such entry is not even existing at the time when the appellant entered into contract with DMRC. Hence, the question of factoring such tax liability in the contract price is not possible. We also refer to the decision of the Tribunal in Himatsingka Seide Ltd. Vs. CC, Bangalore - 2005 (191) E.L.T. 885 (Tri. - Bang.). The Tribunal held that there can be no presumption that duty collected in excess of what is payable is passed on to the buyers. Whenever there is a composite price inclusive of all duties, the meaning is the price includes only the duty payable. No presumption can be made that excess duty paid by mistake is passed on to the buyer. In the present case, th....