TaxTMI 
TaxTMI 
2026 (9) TMI 415
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....ted 30.12.2011 rejecting the appellant's claim for refund of Service Tax amounting to Rs. 65,10,617/- and interest amounting to Rs. 2,50,436/-. 2. The appellant is engaged in the manufacture of electrical transformers and is also registered under the Service Tax law for providing various taxable services. The appellant entered into Contract Agreement no. 149 dated 23.10.2009 with Transmission Corporation of Andhra Pradesh Ltd., ("AP TRANSCO") for laying, jointing, termination, testing and commissioning of 220KV and 132KV XLPE insulated underground cables with accessories. 3. The total contract price was Rs. 77,57,44,809/-, of which 10% was payable as advance. The appellant received an advance of Rs. 7,75,74,481/- during November, 2009....
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....ant submits the CBEC Circular No. 123/5/2010-TRU dated 24.05.2010 clarified that laying of electrical cables between grids, sub-stations and transformer stations was not a taxable service. The tax paid by the appellant was, therefore, a payment made without authority of law and was liable to be refunded. 7. It is further submitted that the contractual stipulation stating that the price was inclusive of duties and taxes would apply only to duties and taxes legally payable. As no Service Tax was payable on the activity in question, it could not be presumed that its incidence had been passed on to AP TRANSCO. 8. On limitation, it is submitted that the payment of Rs. 14,28,161/- through Cenvat Credit and Rs. 13,53,698/- in cash, relied up....
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..... 45/2012-ST or Circular No. 123/5/2010-TRU confers a right to refund of the Service Tax already collected and paid; ii) Whether the refund claim is barred by unjust enrichment; and iii) Whether any part of the claim is barred by limitation. 12. It is not disputed that the work undertaken by the appellant related to laying, jointing, termination, testing and commissioning of underground electrical cables for AP TRANSCO. Circular No. 123/5/2010-TRU dated 24.05.2010 clarified the taxability of activities relating to laying cables. Further, Notification No. 45/2010-ST dated 20.07.2010 was issued under Section 11C of the Central Excise Act, 1944, as made applicable to Service Tax, in respect of taxable services relating to ....
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....4,481/- was received under that composite contractual arrangement. Service Tax amounting to Rs. 65,10,617/- was calculated on the said advance and deposited by the appellant. 15. The substantial clarification regarding non-taxability does not, by itself, establish that the tax component had not form part of the consideration received from AP TRANSCO. On the contrary, the express stipulation that the contract price was inclusive of Service Tax supports the findings that the contractual consideration included the tax burden. The contention that the words "inclusive of all tax" would cover only those taxes which were legally payable does not answer the issue of unjust enrichment. Even if the tax was ultimately found not to be payable, the a....
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....cable-laying or by the provisions concerning transmission of electricity, that finding alone is insufficient to sanction the refund. The appellant was additionally required to cross the statutory bar of unjust enrichment, which it has failed to do. 17. We accordingly find no infirmity in the concurrent finding of the authorities below that the incidence of Service Tax had not been included in the contractual consideration and that the appellant failed to establish that it had borne the burden of such tax. 18. As regards limitation, the refund application was filed on 07.03.2011. The ST-3 Return and payment particulars relied upon by the authorities below indicate that substantial payments towards the tax liability for November, 2009 w....