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TMI Blog2014 (6) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... e circumstances prima facie it cannot be said that the tax being paid by them was incorrect, just because from 2008 onwards a new, specific entry was introduced in the tariff. Agreement very clearly states that the rate mentioned are inclusive of all taxes and levies. I have also gone through the invoices produced. It is seen that the appellants have been charging based upon the quantity of the concrete pumped through the equipment installed by them and the rate is fixed on that basis. Thus, the charges are not in the nature of rental for a particular day or particular period but with reference to the work performed. Invoices do not indicate any tax element separately. Under the circumstances, it has to be held that the rates quoted and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge of Concrete is automatic. The appellants were getting the compensation on the basis of cubic meter of concrete pumped. They had also deployed certain manpower to ensure the proper functioning of the pumps. Pumps were deployed at various sites where the constructions, activities were going on. Appellants' rates per cubic meter were consolidated and included all taxes, vat etc. They were also paying service tax on the said activity under Business Support Service from May 2007 to January 2008. The Business Support Service included Infrastructural Support Service. There was no dispute about the taxability or otherwise. They were also filing the service tax return. In the Budget 2008, a new service under the name supply of tangible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) Commissioner of Cus., Tuticorin vs. Virudhunagar Textile Mills Ltd. 2008 (230) E.L.T. 411 (Mad.) (ii) Dabur India Ltd. Vs. Commr. Of C.Ex., Ghaziabad 2008 (228) E.L.T 131 (Tri-Del) (iii) Pride Foramer Vs. Commissioner of Customs (Import), Mumbai 2006 (200) E.L.T. 259 (Tri-Mumbai) (iv) C.C.E., Chennai- III vs. Saralee Household Bodycare India (P) Ltd. 2007 (216) E.L.T. 685 (Mad) (v) Cimmco Ltd. Vs. Collector of Central Excise, Jaipur 1999 (107) E.L.T. 246 (Tribunal) (vi) Commissioner of C.Ex. Bhavnagar Vs. Modest Infrastructure Ltd. 2011 (24) S.T.R. 369 (Tri-Ahmd) (vii) Commr. Of C.Ex. S.T., Bhavnagar Vs. Modest Infrastructure Ltd. 2013 (31) STR 650 (Guj.) (viii) Thales-E-Transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also providing Manpower and it was their duty to ensure proper functioning of the pumps. Under the circumstances prima facie it cannot be said that the tax being paid by them was incorrect, just because from 2008 onwards a new, specific entry was introduced in the tariff. However, I note that original authority has held in their favour on merits and no appeal has been filed by the department against the said order and therefore the issue on the merits is not before me. 7. I have also gone through the agreement produced. I find that the agreement very clearly states that the rate mentioned are inclusive of all taxes and levies. I have also gone through the invoices produced. It is seen that the appellants have been charging based upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced Chartered Accountant Certificate that the burden of import duty is not passed on to any one that the Hon'ble Madras High Court has taken a view that the doctrine of unjust enrichment will not be applicable. In the case of Dabur India Ltd. (supra) differential duty was paid after the clearance of the goods on confirmation of the demand and under those circumstances, this Tribunal held that the doctrine of unjust enrichment will not be applicable. In the case of Pride Foramer (supra) amount was deposited pursuant to the order of the High Court and in those circumstances this Tribunal has held that doctrine of unjust enrichment will not be applicable. In the case of Saralee Household Bodycare India (P) Ltd. (supra) assessee was col ..... X X X X Extracts X X X X X X X X Extracts X X X X
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