1. This appeal filed by the assessee is against rejection of refund claim by the Commissioner qua revisionary authority.

2. The appellant had mistakenly paid service tax of Rs. 2,02,883/- on installation of raised pavement markers (road studs) for a National Highway during the material period. The payment was made under the Head "Commercial or Industrial Construction services" defined under Section 65(105)(25b) of the Finance Act 1994. The definition of this service excluded commercial/ industrial construction services provided in respect of roads and accordingly, the amounts charged by the appellant for installation of raised pavements for the National Highway were not to be included in the taxable value for the purpose of payment of service tax. However, by a mistake of law, they included such amounts also in the taxable value and paid service tax. The refund claim in question was filed upon realization of this mistake.

3. The original authority vide order-in-original No. 3/2009, sanctioned the refund under Section 11B of the Central Excise Act after holding that the party had not collected the tax from their customers and hence the question of unjust enrichment did not arise.

4. The Commissioner of service tax issued a show-cause notice dated 11/11/2010 under Section 84 of the Finance Act 1994 to review the above order-in-original. This show-cause notice proposed to reject the refund claim on the ground of unjust enrichment. This proposal was contested by the party. In adjudication of the dispute, the Commissioner passed the impugned order rejecting the refund claim of the assessee as barred by unjust enrichment.

5. The learned Consultant for the appellant submits that the incidence of the service tax in question was actually not passed on to the customer; that the contract between the appellant and their customer (work order dated 29/7/2005 issued under cover of letter dated 22/6/2006) provided inter alia for deduction of only income tax and did not provide for deduction of service tax; that the relevant invoices did not indicate any amount of service tax to be paid by the customer and therefore the incidence of service tax cannot be deemed to have been passed on to the customer.

6. Per contra, the learned Superintendent (A.R.) submits that the appellant company itself considered the invoice value as cum-tax value and paid service tax after deducting the tax component from the invoice value. In this connection, reference is made to the tabular statement given in para-5 of the Assistant Commissioner's order. It is therefore argued that it cannot be gainsaid that the appellant's customer who received the full invoice value also assumed the tax burden.

7. After giving careful consideration to the submissions, I find that, if the refund in question is granted to the appellant, they will be unjustly enriched. The appellant accepted the Assistant Commissioner's order which contains the following calculation of "refundable" tax:

Copies of the relevant invoices are available on record. None of them separately indicated any amount of service tax. However, it is not in dispute that the service provider treated the value shown in each of the invoice as cum-tax value, deducted the tax element from the said value and paid service tax on the balance amount. This fact has been clearly brought out by the Assistant Commissioner himself. It is not in dispute that the amounts shown in the invoices were col