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TMI Blog2021 (7) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... axable under the category of Erection, Commissioning and Installation Service . Unjust enrichment - HELD THAT:- The appellant has placed on record the letters issued by both the service recipient i.e., BSNL and TATA Teleservices in Annexure - D and E which makes it abundantly clear that no service tax has been charged and collected in respect of work orders during the relevant period. Further, on perusal of the work orders in Annexure - F issued by BSNL for the relevant period, it clearly suggests that no service tax was neither charged nor collected by the appellant. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 2149 of 2012 - Final Order No. 20546/2021 - Dated:- 9-7-2021 - SHRI S.S GARG, JUDICIAL ME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar No.123/5/2010-TRU dated 24.5.2010 clarifying that the activity of trenching and laying cables alongside road is not a taxable activity and cannot be levied to service tax under erection, commissioning and installation service. Accordingly appellant filed a refund claim of ₹ 6,09,087/- with the Deputy Commissioner vide letter dated 17.8.2010. Thereafter, the Deputy Commissioner issued a show-cause notice dated 23.9.2010 proposing to reject the said claim being hit by limitation in terms of Section 11B of the Central Excise Act and that the appellant did not produce documentary evidence to prove that the burden of service tax paid by him had not been passed on to their customers. The original authority rejected the refund claim being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not hit by limitation. He further submitted that the documents placed by the appellant in the form of letters issued by both the service recipient i.e., BSNL and Tata Teleservices Limited make it abundantly clear that no service tax had been charged and collected in respect of work orders for the relevant period. He further submitted that on perusal of the work orders issued by BSNL for the relevant period clearly suggests that no service tax was neither charged nor collected by the appellant. He further submitted that all the requisite conditions specified in Section 11B of the Central Excise Act had been fulfilled by the appellant and therefore, appellant is entitled to the refund of duty deposited by him. 5. On the other hand, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no dispute regarding the taxability of the impugned activity. Further, I find that even before the issuance of the said Circular by the Board, the Tribunal Chennai in the case of Indian Hume Pipe Company Limited vs. CST, Trichy as reported in 2008 (12) STR 363 (Tri.-Chennai) has held that the impugned activity is not taxable under the category of Erection, Commissioning and Installation Service . Further, I find that the Commissioner (A) vide its Order-in-Appeal No.95/2009 dated 17.3.2009 relied upon the decision of the Tribunal in the case of Indian Hume Pipe Company Limited cited supra and dropped the demand for similar activity as is involved in the present case. As far as limitation is concerned, the Hon ble High Court has already he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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