2024 (1) TMI 139

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....ceived from the service receiver by the respondent as per the rate approved be considered as cum duty price in terms of Section 67(2) Ibid. (b) The refund of Rs. 49,58,381/- sanctioned and paid by the adjudicating authority vide impugned order is erroneous and needs to be recovered along with interest as per law. (c) The correct amount of service tax to be recovered with interest be re- calculated on remaining 40% amount considering it as cum-duty-price after allowing 60% abetment and surplus, if any, be refunded to the respondent. 1.2 The brief facts of the case is that the Adjudicating Authority sanctioned the refund claim of service tax of Rs. 49,58,381/- filed by the appellant in terms of exemption Notification No 2....

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....e value, the same does not stand included in the value. Moreover, the service tax paid by the appellant has been shown as receivable in the books of account and also the Chartered Accountant certificate was submitted. This clearly shows that the service tax paid by the appellant was not recovered from their customers and the entire basis for denial of the refund by the Commissioner (Appeals) is without any basis. 3. Shri Anoop Kumar Mudvel, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the records. We find that there is no dispute on the merit of the case that the appellant is not liable to pay t....

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....ent-a- Cab service and the payment of the Service Tax is borne by them and the same has not been recovered/collected from the service receiver. For the justification of above, the said assessee has submitted declarations from his service receivers that he has not collected any Service tax amount form them i.e. service receivers and paid the service tax amount by his own pocket on the transport services provided to various Gujarat Govt. Department for conduct of state examination under Rent-a-Cab Service for the period 01.07.2012 to 30.09.2013. Also, the said assesse has submitted sample copy of invoices raised by him to his various service receivers in which no service tax has been charged. So, the payment of service tax is borne by the sai....

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....e usual condition that the rates are inclusive of all duties and taxes is only with a view to avoid any possibility of the supplier 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 applicat to only duties or taxes which are payable." I also rely on the decision Thales-E-Transaction CGA v. Commissioner V- 2006 (3) S.T.R. 205 (Tribunal) wherein it was held that 'rejection of refund claim on ground of presumption that the rates quoted in contract are inclusive of all taxes would be erroneous. If the appellant are able to produce evidence that they have not passed on the incidence of Service tax to thei....