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TMI Blog2010 (1) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... ainable as the appellants vide letter dated 28.8.2004 informed the department that they had re-paid the said availed service tax along with interest to the department it cannot be said by any stretch of imagination that the burden of service tax amount to be refunded has been passed on to any other person or customers as service tax has gone in the excisable goods sold by the appellants. - whatever payment was made did not relate to service tax at all. It was merely an erroneous collection by DOT and payment by the appellants. Therefore, provisions relating to refund of service tax, including those relating to unjust enrichment, cannot have any application to the return of the amount in question – refund is allowed - 513 of 2008-SM - 92/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Welfare Fund. Commissioner (Appeals) vide impugned order dated 10.4.2008 held that unjust enrichment is not applicable and ordered for cash refund. Hence the Department is in appeal. The cross-objection filed by the respondents is basically in support of the order of the Commissioner (Appeals) sanctioning refund in cash. 4. The learned Jt.CDR reiterates the grounds of appeal and draws my attention to para 12 in the grounds of appeal wherein it has been submitted that 'party had availed cenvat credit and had also utilised the same, that the case of unjust enrichment is clearly there as when the manufactured goods were cleared the service tax factor would have been got included in the cost of goods. This means service tax burden has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority held that the party has not proved that they have not passed on the burden of tax whereas the Commissioner (Appeals) has held otherwise with the following findings: I have that the ground taken for arriving at the conclusion of unjust enrichment that the appellants availed the Cenvat credit and the burden of service tax was passed on to the customers in the form of excisable goods, is ill-founded inasmuch as the service tax was not applicable on the technical know-how and the appellants on the insistence of the department paid the same from their own pocket even being service receivers and nor service providers. The ground that the appellants availed of the same as Cenvat credit is also not sustainable as the appellants vide let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely an erroneous collection by DOT and payment by the appellants. Therefore, provisions relating to refund of service tax, including those relating to unjust enrichment, cannot have any application to the return of the amount in question. It is further noted that provisions contained in Section 11D of the Central Excise Act have not been made applicable to service tax. Therefore, if any amounts are collected erroneously as representing service tax, which is not in force, there is no bar to the return of such amounts. The rejection of refund application was, therefore, not correct'. 6.3 The grounds of appeal do not disclose any reason for disagreeing with the factual findings by the Commissioner (Appeals). Further, no averments have be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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