2018 (11) TMI 307

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....utory definition of the said services. 2. Whether the refund claim of Service Tax paid is hit by time bar and/or unjust enrichment. 3. Whether the appellant's service is covered under Work Contract service. If so, whether it is taxable prior to 01.06.2007. 2. None appeared on behalf of the appellant. However, they filed a written submission vide their letter dated 28.08.2018 and requested to decide the matter on merits. They also relied upon the following judgments: (1) CCE Vs. Motor Industries Co. Ltd. 2006 (75) RLT 56 (CESTAT) (2) Laxmi Board & Paper Mills Ltd. Vs CCE 2007 (208) ELT 384 (T) (3) CCE Vs. Mehra Ferro Alloys 2001 (137) ELT 1420 (T) (4) Rotogravurs Vs. UOI 1992 (57) ELT 407 (Bom.) (5) Indian Pistons Ltd....

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....not leviable on the services provided by them. In this regard, we find that this particular service i.e., Erection, Commissioning or Installation of structures was specifically incorporated in the definition of Erection, Commissioning or Installation service with effect from 01/05/2006. Therefore, it is clear that this service was not covered under the definition of Erection, Commissioning or Installation prior to 01/05/2006. Therefore, the same was not taxable under this particular head. We also find that the appellant have made a submission that their service being a turnkey project is covered under Works Contract Service which became taxable only with effect from 01/06/2007. However, in this regard, the lower authority has rejected the p....

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....equently, they have not made any protest. Therefore, the refund is time barred. We do not agree with this proposition for the reason that protest is only an expression of protest which once raised on a particular issue, it will continue till the dispute is settled. Therefore, once a letter dated 14/10/2005 was filed towards the payment of Service Tax under protest, in our considerate view, the protest was in continuation and whatever Service Tax was paid, that will be treated as under protest. Accordingly, time bar will not apply in this case. As regard unjust enrichment, we find that the appellant's claim is that since the Service Tax was not paid by their Service Recipient, there is no unjust enrichment. In this regard we are of the view ....