COMMISSIONER OF SERVICE Vs. USHA HYDRO DYNAMICS LTD

JUDGEMENT

(1.) THESE two Appeals were filed by revenue against the same respondent. In both the Appeals, revenue's grievance is that they were aggrieved by order passed by ld. Commissioner who set aside the order passed by the ld. Adjudicating Authority denying refund of Rs. 7,78,498 and Rs. 8,59,882 respectively. In both the cases, ld. Commissioner (Appeals) held that the respondent had borne the burden of Service Tax paid under protest and had not realized the same from its clients, for which they need not face the test of unjust enrichment.

(2.) LD . DR vehemently objects the order passed by ld. Commissioner (Appeals) on the ground that if at all taxes were refundable that had to meet the test of unjust enrichment. Respondent have provided repair and maintenance service through high pressure water jet pumps without merely cleaning the plant and machinery. Therefore the Adjudicating Authority rightly denied refund classifying the service under the category of repair and maintenance. He further submits that in terms of Section 65(64) of the Finance Act, 1994, the term 'repair and maintenance' has been defined. Such service was provided under a maintenance contract, for which the respondents have to suffer tax.

(3.) HEARD both the sides and perused the record.