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TMI Blog2006 (2) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... ben passed, assesee will be eligible for refund - rejection of refund claim by lower authorities on presumption was erroneous - matter remanded - ST/89/2005-NB (SM) - 483/2006-NB (SM)-BR - Dated:- 1-2-2006 - [Order]. - This appeal is directed against the order-in-appeal, dated 24-2-2005 which upheld the dismissal of refund claim of the appellants by order in-original. 2.The relevant facts tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the Tribunal in the case of Daelim Industrial Co. Ltd v CCE, Vadodara - 2003 (155) E.L.T. 457 (Tri.-Del.). The adjudicating authority allowed the refund and ordered the amount to be credited to Consumer Welfare Fund. On an appeal the appellate authority has concurred with the views of the adjudicating authority. 3.Considered the submissions made by both sides and permitted the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant, I find that one of the terms of the contract is that tenderers shall quota a fixed lump sum price for the contract as a whole in Annexure II inclusive all taxes, duties, etc., including taxes to be deducted at source, except where it is expressly indicated otherwise elsewhere in Annexure II. From the contract made available, it cannot be established that the Service Tax amount has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1999 (107) E.L.T. 246 (Tribunal) in an identical issue in respect of Excise duty refund held as under: "For the foregoing reasons we hold that the Assistant Collector erred in coming to the conclusion with reference to the condition in the schedule of rates that the rates are inclusive of all duties and taxes, that the rates mentioned therein conclusively included the element of excise duty and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption would be erroneous. If the appellants are able to produce evidence that they have not passed on the incidence of Service Tax to their clients, then they are eligible for Refund. 6.In view of the above findings, the order-in-appeal is liable to be set aside. I set aside the impugned order and remand the matter back to adjudicating authority to decide the refund claim afresh after grantin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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