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Refund of service tax on a works contract transactions.​

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2018-VIL-294-CESTAT-HYD-ST

GMR ENERGY VEMAGIRI POWER GENERATION LIMITED Vs CCCE, VISAKHAPATNAM-II

Service Tax - appellant had entered into an agreement with Korea Plant Service & Engineering Company Limited for operation and maintenance of power plant - Denial of refund of service tax paid on the operation portion of the contract entered into by appellant for operation and maintenance – revenue contention that doctrine of unjust enrichment is not satisfied –

HELD – it is the case of Revenue that the doctrine of unjust enrichment is not satisfied as the power purchase agreement entered with APSEB indicates only one price towards the purchase of power from GMR Energy Vemagiri Power Generation Limited, in all probabilities the service tax element for which refund has been claimed is included while arriving at the unit price of electricity sold to APSEB - the appellant had produced detailed Chartered Accountant certificate, which indicates the bifurcation of the amounts towards maintenance charges and operation charges and has specifically certified that appellant has not passed on the service tax liability on the operations part to any one and has borne the burden of the service tax - the said certificate clearly indicates the details on the basis of which the Chartered Accountant has come to a conclusion the amount for which refund claim is preferred, is borne by appellant-assessee – appeals filed by assessee is needs to be accepted and the impugned orders is set aside and the appeals filed by Revenue are rejected

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