ADITYA CEMENT Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS appeal is directed against the order -in -appeal dated 19.04.2006 that upheld the order -in -original vide which the refund claim filed by the appellant was rejected.

(2.) THE relevant facts that arise for consideration are that the appellant filed a refund claim of Rs. 1,47,358/ - in respect of the amount paid by them as Service Tax for the period October, 2003 to November, 2003 in respect of the services received by them from a non -resident engineering consultants. A show cause notice was issued to the appellant proposing to reject the refund claim on the ground that the Service Tax paid by the appellant is correct and the appellant being a service receiver has correctly paid the amount as service tax. Appellant resisted the show cause notice mainly on the ground that they are not liable to pay the service tax as per the provisions of the Section 68 of The Finance Act, 1994 and the amount paid by them is not in accordance with the law, and hence, the same is refundable. Adjudicating authority did not accept the contentions of the appellant and rejected the refund claim, Appeal of the appellant also met with the same fate. Hence, appellant has preferred this appeal.

(3.) THE learned advocate appearing for the appellant submits that the statute envisages the payment of service tax by the service provider and the service receiver's liability of payment of service tax arises only after the Government notifies the services. It is his submission that the service tax liability on the receiver of services from non -resident, was brought in to statute by the Notification No. 36/2004 - S.T. dated 31.12.2004. It is his submission that the appellant were never authorized by the non -resident consultant to pay the service tax on their behalf and hence the appellant could not be made liable to pay the service tax. Having paid the amount as tax inadvertently the appellant has claimed the refund of the duty. He relies upon the decision of the Tribunal in the case of CCE. Noida v. Motherson Sumi systems as reported at 2006 (1) S.T.R, 307 (Tri.Del), for the proposition that the appellant is not a authorized representative to pay the Service Tax on behalf of the non -resident