2009 (10) TMI 289

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..... for the Respondent. ORDER 1. Appellants had claimed a refund of Rs. 1,75,142 paid by them as a receiver of service. This is a second round of litigation. In first round of litigation, the matter had reached the Tribunal and the matter was remanded to the Original Adjudicating Authority to consider applicability of doctrine of unjust enrichment. The Original Adjudicating Authority held that refun .....

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..... gain proves that the service tax was borne by themselves and not passed on to anybody. 3. On the other hand learned DR submits that the very fact, that the tax has been shown as expenditure shows that the same has been recovered from the customers. If it was not the position, balance sheet would have shown it as receivable and not as an expenditure. Learned DR also relies on the following decisio .....

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..... eas clients, their working of service tax liability and a certificate from chartered accountant lead to an inference that the appellants have not charged any service tax from their clients and the same had been borne by them. The appellants had calculated their service tax liability on the gross amount received, which is also evident that they did not charge any service tax and total receipt was n .....

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..... (89) ELT 247 is misplaced inasmuch it relates to sale of goods wherein cost of inputs are necessarily incurred whereas in the present case it is provision of services, especially as commission agents, wherein mental inputs are incurred which cannot be compared in monetary terms. So far as the appellants are concerned they have made out their case beyond doubt that they had not passed on the incide .....

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..... is reliable to rebate of duty of excise on excisable goods exported out of India, the amount shall be paid to the claimant. This means that provisions relating to unjust enrichment are not applicable in respect of export of service. In this case also the refund claim has arisen as a result of export of services. On this ground also, the appellants are eligible for the refund. In view of the above .....

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