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TMI Blog2016 (8) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to taxable service provided by the appellant is the service recipient. Thus, it is clear that the legal liability to pay service tax does not rest on the appellant. The agreement is of no relevance. Section 67 (2) of the Finance Act, 1994 - gross amount charged is inclusive of service tax the value of such service shall be such an amount as with additional of tax payable is equal to the gross amount charged – Held that: - Section 67(2) ibid is not relevant in the present case as it deals with the valuation of service which is not the issue in this case. Service tax not payable – case remanded back – appeal allowed – refund granted - principle of unjust enrichment to be satisfied. - ST/50471/2016-ST[SM] - Final Order No.52687/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt pleads as under:- (i) On receipt of the audit memo, the appellant replied vide a letter dated 01.02.2013, which is reproduced below:- 6. Please refer to your point no.6 the said amount relates to service provided by us to M/s. Era Infra Engg. Ltd. against agreement minutes of meeting 29.12.2010 (Copy of the said Agreement/Minutes of the Meeting enclosed), Please also refer to the point No. 7 of the said agreement which shifts our liability to service tax in the said regard on consignee M/s. Era Infra Engg. Ltd. , as we are the service provider Era Infra Engg. Ltd. is the consignee notified company, so that we hereby stated that we are being a service provider we are not liable to pay service tax for the said amount. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no evidence that the service recipient has paid the service tax. 5. I have considered the contentions of both sides. It is right to say that the liability of service tax is determined by the statute and that liability cannot be shifted by means of mutual agreement/contract between two private parties. Thus, the mention in the contract between the appellant and EIEL that in case there is service tax liability it will be paid by the appellant is of no consequence for the purpose of determining as to who is liable to pay service tax. It is useful to quote Rule 2(1)(d)(v) of Service Tax Rules, 1994:- 2 (1) In these rules, unless the context otherwise requires, - ...... (d) person liable for paying the service tax me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luation of service which is not the issue in this case. It is also seen that the appellant has not charged any service tax from the service recipient and therefore a possible argument that the service tax collected has to be deposited in the Govt. account also cannot be made. The judgement of Hon'ble Supreme Court in the case of Rashtriya Ispat Nigam Ltd. Vs. Dewan Chand Ram Saran [2012 (26) STR 289 (SC)] was cited by ld. Departmental Representative to assert that the Hon'ble Supreme Court observed that this statutory provision can be of no relevance to determine the rights and liabilities between the appellant and the respondent as agreed in the contract between two of them. There was nothing in law to prevent the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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