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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 ..... is observed that the service rendered by them would not fall under the category of Consultancy Engineer s Service - the services rendered by the Appellant are not liable to service tax under the category of Consulting Engineer Service. Refund of service tax along with interest - time limitation - unjust enrichment - HELD THAT:- The tax in this case has been paid under mistake and hence the provisions of Section 11 B of the Central Excise Act,1944 and the provisions of limitation and unjust enrichment are not be applicable. Applicability of unjust enrichment - HELD THAT:- The Appellant stated that they have paid the tax under the category of Consulting Engineer service under a mistaken belief. As service tax is not payable in this case, the question of unjust enrichment does not apply to this case. The Appellant is eligible for the refund of service tax paid, along with interest - the impugned order is set aside - appeal allowed. - MR. R. MURALIDHAR MEMBER (JUDICIAL) AND MR. K. ANPAZHAKAN MEMBER (TECHNICAL) Shri Prasad Paranjpe, Advocate for the Appellant Shri K. Chowdhury, Authorized Representative for the Respondent ORDER The present appeal has been filed by the Appellant M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the term Consulting Engineer under Section 65 (31) of the Finance Act, 1994 is defined inter alia to 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 they have entered into operations and maintenance contract with HPLCL under which they are obliged to operate, maintain and run the Power Plant to the desired efficiency. It is provided in the O M Agreement that the Appellant is obliged to run the Power Plant at certain efficiency levels and achieving or not achieving those efficiency levels will result into the Appellant being rewarded with bonus or being imposed with liquidated damages as the case may be. This establishes that the Appellant themselves are liable to run the Power Plant for their own benefit and on its own account and they are not expected to provide any advice, consultancy, or technical assistance in any discipline of engineering to their clients HPLCL. Thus, the proposal to uphold the payment of service tax by them under the mistaken belief under the category of Consultancy Engineer s Service is incorrect in law and theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the services rendered under the O M Agreement, is not liable to service tax. We observe that this decision cited by the Appellant is squarely applicable in this case. 10. In the case of Rolls Royce Indus Power (I) Ltd, the Tribunal has held as under: 6 . We have perused the records and considered the submissions made by both sides. The issue raised is the true meaning and scope of operation and maintenance agreement dated 14-3-95. The appellant had taken over the plant and was operating maintaining it in terms of the agreement. A perusal of the agreement makes it clear that it is a contract between owner and an operator. The terms of the contract vest complete freedom and responsibility on the appellant, without any interference by the owner. The owner s right is restricted to entry and access, to be satisfied that the operation is carried out according to standards. He also receives reports about the relevant aspects of operation, status and output. The payment for operation and maintenance are determined under the various clauses of the contract. In addition to the lump sum payment, it also provides for bonus and penalty. The terms of the contract do not envisage or involve prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise, Bangalore v. Motorola India Pvt. Ltd. (supra) the Division Bench of this Court considered similar issue. It was a case where excess amount was paid over duty under Central Excise Act on the direction of the Department. There was an application for refund of amount and the same came to be rejected by the Assistant Commissioner on the ground of lapse of time. It was confirmed by both the Appellate Authority and also the Tribunal. Aggrieved by the order of the Tribunal, revenue came up before the High Court. Their lordships of the Division Bench held that order of the Tribunal to allow the claim on the basis that amount paid by mistake cannot be termed as duty in the said case was justified and therefore applying the law laid down in the decision of Apex Court in the case of India Cements Ltd. v. Collector of Central Excise - 1989 (41) E.L.T. 358, dismissed the appeal. 23. Now we are faced with a similar situation where the claim of the respondent/assessee is on the ground that they have paid the amount by mistake and therefore they are entitled for the refund of the said amount. If we consider this payment as service tax and duty payable, automatically, Section 11B would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and unjust enrichment are not be applicable. 15. We also find that the time bar issue has not been raised in the Notice. This observation has been made by the adjudicating authority in the impugned order, which is reproduced below: The other decisions relied upon by the applicant relates to time bar issue. I find that in the impugned Notice there is no allegation made in the time bar factor under Section 11B of the Central Excise Act, 1944. Therefore, I find no reason to discuss the contention of the applicant on the issue and the relied upon decisions submitted by them . 16. We observe that the observation made by the Ld. Commissioner as reproduced above has been accepted by the department, as no appeal has been filed against this observation. Thus, we hold that the issue of time bar is not a part of this appeal as the issue has already been decided by the Ld. Commissioner and no appeal has been filed by the department against the said decision. 17. Regarding the issue of applicability of unjust enrichment, the Appellant stated that they have paid the tax under the category of Consulting Engineer service under a mistaken belief. As service tax is not payable in this case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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