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TMI Blog2024 (6) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... the O & M Agreement, the Appellant was required to operate the Plant in such a manner so as to maximise the efficiency and output of the electricity and steam generated during the operation and maintenance period. The O & M Agreement envisaged provision of certain services during the pre-operational period which ended on 07.08.1999 as well as services of running the Power Plant during the operation period. The present dispute pertains to services rendered and consideration received during the operation period i.e. after the pre-operational period. 3. During the period July 2003 to October 2007, the Appellant rendered the services of operation of the plant and under the bonafide belief that such services are liable to service tax under the category of Consulting Engineering Service, paid service tax in two tranches as under: Sr. No. Period Tax (Rs.) Interest (Rs.) 1 Jul 2003 -Oct 2006 2,28,87,437 9,16,854 2 Mar 2007 - Oct 2007 45,41,050 2,57,985 TOTAL 2,74,28,487 11,74,839 Grand Total 2,86,03,326 4. Upon realizing that the services rendered by them under the O & M Agreement during the operations period would not be liable to service tax, the Appellant fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observe that the issue to be decided in the present appeal are: (i) Whether the services rendered by the Appellant under the O & M Agreement during the operations period would be liable to service tax, under the category of 'Consulting Engineer service' or not. (ii) Whether the Appellant is eligible for refund of service tax paid by them along with interest. 8. Regarding the liability of service tax under the category of 'Consulting Engineer service', we would like to examine the definition of 'Consulting Engineer Service'. As per Section 65 (31) of the Finance Act, 1994 , the term 'Consulting Engineer Service' would mean a service in the nature of advice, consultancy or technical assistance in any discipline of engineering provided by the service provider to the service recipient. In the present case, a perusal of the Operation Agreement entered by the Appellant with HPLCL reveal that the Appellant has not rendered any advice, consultancy or technical assistance in any discipline of engineering . The Appellant has entered into operations and maintenance contract with HPLCL under which the Appellant themselves are obliged to operate, maintain and run the Power Plant to the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendering of service, in this case, engineering consultancy. That situation does not take place in the present case. Therefore, we are of the opinion that the duty demand raised is not sustainable. The learned SDR's contention about the 46th Amendment and the Apex Court's decision in Builders Association of India and Others (supra) have no application in the present case since such a deemed definition does not exist in the case of job work as has taken place in regard to project contracts in sales tax. In these facts and circumstances, the appeal is allowed after setting aside the impugned order. 11. Accordingly, by following the decision cited above, we hold that the services rendered by the Appellant are not liable to service tax under the category of 'Consulting Engineer Service. 12. The next issue to be decided is whether the Appellant is eligible for refund of service tax of Rs.2,74,28,487 paid by them along with interest. The Appellant cited the decision of Commr. of C. E. (Appeals), Bangalore Vs. KVR Construction- 2012 (26) STR 195 (Kar.),wherein the Hon'ble High Court of Karnataka has held that when the tax is paid under mistake, provisions of Section 11B of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 (14) G.S.T.L. J70 (S.C.). 12. Similarly, in the following cases, the co-ordinate Benches have held that refund claims filed on account of Service Tax paid by mistake, are not governed by the time limit specified under Section 11B. 1. Venkatraman Guhaprasad Vs. Commr. of GST & C. Ex., Chennai, 2020 (42) G.S.T.L. 124 (Tri.-Chennai) 2. Commr. V. KVR Construction 2018 (14) G.S.T.L. J70 (S.C.) 3. Parijat Construction Vs. Commr. of Central Excise, Nashik, 2018 (359) E.L.T. 113 (Bom.) 4. 3E Infotech Vs. CESTAT, Chennai, 2018 (18) G.S.T.L. 410 (Mad.) 5. Commr. Of C.Ex. (Appeals), Bangalore Vs. KVR Construction, 2012 (26) S.T.R. 195 (Kar.) 13. Based on the decision of Third Member Reference Bench, the CESTAT, Hyderabad vide its Final Order No. A/30082/2022 dated 05/09/2022 in the Credible Engg. Construction Vs. CCE, Hyderabad, has held as under:- " In view of the difference of opinion, the following questions arise for consideration by learned 3rd Member: (1) Whether the limitation prescribed under section 11B of the Central Excise Act will not be applicable as the tax was paid erroneously though eligible to exemption and as such is in the nature of deposit and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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