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TMI Blog2011 (5) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... o accept the claim that the above remark had been made in the original TR-6 challan. This is because manipulation is possible in the course of photocopying a document. In any case, the appellant or their Consultant has not brought on record any other documents evidencing payment of service tax under protest for the remaining period. In the circumstances, the present contention of the appellant that the service tax paid under protest cannot be accepted. - ST/38/05 - - - Dated:- 5-5-2011 - Mr. P.G. Chacko, Mr. P.R. Chandrasekharan, Appearance: Shri.K.G. Anoop, Cost Accountant for appellant Shri.Manish Mohan, SDR, for respondent Per: P.G. Chacko 1. This appeal filed by the assessee is against the rejection of two refund claims, one for Rs.3,18,16,233/- and the other for Rs.53,88,179/-. The assessee had paid the said amounts of service tax for the periods October 1999 to April 2002 May 2002 to September 2002 respectively. The said amounts of service tax were paid under the head 'Clearing Forwarding Agency Services'. The refund claims were filed on 23/07/2002 and 27/03/2003 respectively. The department issued two show-cause notices dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this contention is stated to be restricted to the period from January 2002 inasmuch as, according to the Consultant, the payments of service tax 'under protest' were made from that month only. He has also shown us a copy of TR-6 challan, which apparently pertains to payment of service tax for the month of January 2002 and contains a remark reading thus: 'the same paid in protest as per the letter of Directorate of Service Tax dated 05/02/2002'. It is asserted by the Consultant that all the subsequent payments of service tax were also made under protest as evidenced by the relevant TR-6 challans. However, no copy of any such challan has been produced. Nevertheless, it is reiterated that the rejection of claim for refund of service tax paid from January 2002 is not sustainable in law. 3. The learned Consultant for the appellant has also pleaded the bar of unjust enrichment. It is submitted that the burden of service tax had not been passed on to the customers and, therefore, the claim for refund thereof is not liable to be rejected on the ground of unjust enrichment. 4. The learned SDR representing the Revenue has taken us through the records to show that the case a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and order-in-appeal involved in this case and copies of certain other documents, which are seen referred to either in the show-cause notices or in other proceedings relating thereto. The Chartered Accountant's certificate, which was issued on 28/04/11, says that the appellant has not received the service tax amounts of Rs.15,46,726/- and Rs.10,75,241/- for 'storage service' from certain customers, viz., M/s.Reliance Industries Ltd., and M/s.Numaligarh Refineries Ltd., and that the amounts of service tax are appearing as outstanding in the books of accounts of the appellant as on 31/03/11. On the basis of this certificate of the Chartered Accountant, the learned Consultant for the appellant submits that refund claim of service tax to the extent of Rs.26,21,967/- (sum of the aforesaid amounts) cannot be rejected on the ground of unjust enrichment. In other words, the learned Consultant for the appellant would like to restrict the refund claim to Rs.26,21,967/-. 7. We have given careful consideration to the submissions. It is on record that the appellant got themselves registered with the department as early as in October 1999 for payment of service tax as Clearing Forwarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otest. No such evidence was produced, nor cited, before the appellate authority even in the written submissions filed by them before that authority after personal hearing. Before the Tribunal, at present, the learned Consultant has produced a copy of just one TR-6 challan, which pertains to the month of January 2002. This document contains a handwritten footnote reading thus 'the same paid under protest as per letter of Directorate of Service Tax dated 05/02/2002'. As already indicated, this document is a zerox copy of the TR-6 challan for January 2002. In the absence of the original TR-6 challan, it is difficult for us to accept the claim that the above remark had been made in the original TR-6 challan. This is because manipulation is possible in the course of photocopying a document. In any case, the appellant or their Consultant has not brought on record any other documents evidencing payment of service tax under protest for the remaining period. In the circumstances, the present contention of the appellant that the service tax paid under protest cannot be accepted. The decision of the lower authorities in relation to the claim for refund of service tax of Rs.1,97,66,972/- i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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