2019 (9) TMI 117

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..... 2. The appellants are engaged in the business of construction, maintenance and repair of roads and commercial construction under "Works contract service" and "Management, Maintenance or Repair Service". They entered into a contract with the National Highway Authority of India (in short "NHAI") for the work of short term improvement and routine maintenance of westerly division to Pune city on National Highway No.4 and 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 Rs. 36,93,008/- on the value received by them from NHAI during the period 16.6.2005 to 26.7.2009 and ....

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....ance with the Order dated 5.8.2009 of the Commissioner (Appeals). The said refund claim was sanctioned by the adjudicating authority vide Order-in-Original dated 6.5.2013. Aggrieved, the Revenue filed Appeal before the learned Commissioner (Appeals) and the learned Commissioner vide impugned order dated 14.11.2013 allowed the Appeal filed by Revenue and set aside the 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 Rs. 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 ....

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....submitted that since the service tax itself is not payable, therefore there is no question of payment of penalty and the same is therefore eligible to be refunded. He also submitted that since this is a Service Tax matter therefore the Revenue ought to have filed the Appeal before the learned commissioner in Form ST-4 as provided in Section 85 of the 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 i....

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.... Affidavit dated 6.1.2014 of the General Manager of the Appellant in which it has been categorically mentioned that the appellants have not received any amount against service tax from NHAI and that they have paid the service tax amount of Rs. 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. 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 l....