VIKRAM CEMENT Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THE appellant is a manufacturer of cement. In connection with that, it engaged engineering and management consultants from abroad. During the period December 2002 to October 2004, certain payments were also made to those consultants. During the relevant period, these services were liable to Service Tax. Accordingly, on the value of the services, Service Tax was also paid, under protest.

(2.) SUBSEQUENTLY , on 15.2.05, the appellant filed refund applications claiming return of the Service Tax (over Rs. Two lakhs) paid on the ground that the appellant was not liable to pay the Tax. The contention was that the Tax was payable by the provider of the service, viz. foreign consultants. The refund application was rejected by the original authority and the first appellate authority. Hence the present appeal.

(3.) THE contention of the ld. Counsel for the appellant is that in terms of Section 68(2) of Finance Act, during the relevant period, the tax was payable by the provider of the service. It is being pointed out that only with effect from 1.1.05, the service recipient became liable for payment of the tax, in the light of Notification No. 36/2004 dated 31.12.04. It is being pointed out that since the tax was not payable by the appellant during the period when the tax was paid, the amount is refundable. Reliance is being placed in this connection, on the Single Bench decision of the Tribunal in the case of Aditya Cement v. CCE 2007 -TIOL -236 -CESTAT -DEL. It is also being pointed out that it is well settled (Govind Saran Ganga Saran v. Commissioner of Sales Tax and Ors. 1985 (Supp) -205 that unless it is clear as to the person on whom the levy is imposed and is obligated to pay the tax, payment of tax cannot arise.