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TMI Blog2019 (5) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... n, fitting out, repair, maintenance renovation or alteration of a civil structure when provided to a Governmental authority from the ambit of service tax. However, said exemption was recalled vide the Notification No.6/2015 dated 1st March, 2015 whereafter the services provided even to Government were leviable to service tax, therefore the same was borne by MES which Service Tax component was deposited by the appellant with the Service Tax Department. By virtue of Section 102 of Finance Act, 2016 incorporating the aforesaid entry No.12A that the services provided by the appellant to MES became exempted retrospectively from 01.04.2015 itself. This observation is sufficient to hold that the intention of the Government had always been to exempt the services being provided to anyone other than commerce industries business or profession i.e. the services provided to Government to remain exempted from the levy of service tax. No doubt for any amendment, which is substantive in nature the same has to be applied prospectively. The refund claim was initiated by the appellants/ the service providers on the request of the service recipient i.e. MES, Ministry of Defence, which is none ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. ST/52918/2018 M/s.Dashmesh Buildcon No.45 dated 12.01.2017 ₹ 20,20,047/- 08/2017-ST dated 31.01.2017 541/2018 dated 06/06/2018 3. ST/52919/2018 M/s. Pawansut Enterprises No.36 dated 16.01.2017 ₹ 29,80,286/- 21/2016-ST 542/2018 dated 06/06/2018 4. ST/52920/2018 M/s.Khanna Enterprises No.47 dated 12.01.2017 ₹ 38,95,489/- 07/2017-ST dated 31.01.2017 539/2018 dated 06/06/2018 2. The common facts of four of these appeal are that the appellants have been providing work contract service to Military Engineering Services (hereinafter referred as MES), Ministry of Defence, Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government Department. The tax was never collected nor ever was paid for rendering services to the Government Department prior 1st April, 2015, nor it has been paid post February, 2016 due to the restoration of the exemption from payment of service tax as was available to the service provider, when he is providing services to the organization, which exists for the purpose other than for commerce industry business or profession. It is submitted that for the period during which the exemption was withdrawn, the appellants have duly paid the service tax after receiving the same from MES, Ministry of Defence. The impugned refund claims have been filed after the exemption stood restored vide the Notification No.9 of 01.03.2016 that too on the request of MES. Initially, the refund was rejected on three grounds by the original adjudicating authority, as were proposed in the show cause notice. However, the appellate authority has held that though the claim is not barred by time, however, apparently the burden of tax has been passed to MES by the applicant, the same amounts to the unjust enrichment of applicant/ appellant herein. The order of rejection was otherwise upheld. It is further im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid exemption was recalled vide the Notification No.6/2015 dated 1st March, 2015 whereafter the services provided even to Government were leviable to service tax, therefore the same was borne by MES which Service Tax component was deposited by the appellant with the Service Tax Department. Subsequently, Section 102 as was inserted in Finance Act, 1994 vide Finance Act, 2016, which reads as follows:- Section 102. Special provision for exemption in certain cases relating to construction of Government buildings. - (1) Notwithstanding anything contained in Section 66B, no service tax shall be levied or collected during the period commencing from the 1st day of April, 2015 (both days inclusive), in respect of taxable services provided to the Government, a local authority or a Governmental authority. Accordingly, entry 12A got inserted which reads as follows:- 12A. Services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of (a) a civil structure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was no more a duty. In the given circumstances, the amount paid by the appellant is nothing more than the deposit made by the appellant in excess. 9. The Commissioner (Appeals) has referred to Section 11B (2) of Central Excise Act, 1944, while forming an opinion for unjust enrichment by the appellant. But I am of the opinion that the said Section is applicable to whole or any part of duty of excise paid by the applicant. Once any amount is merely a deposit in excess and not the duty as such, the Section 11B (2) of CEA has no applicability. In the present case after Finance Act, 2016, the amount paid as service tax during the period 01.04.2015 to 29.02.2016 is the amount, which is not recoverable as tax /duty. Hence, the Section 11 B (2) is not applicable to the given circumstances. 10. The facts of these appeals are otherwise peculiar for two reasons:- (1) The refund claim was initiated by the appellants/ the service providers on the request of the service recipient i.e. MES, Ministry of Defence, which is none other than the Government of India (2) There is a clear declaration in the form of Affidavit as was annexed w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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