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TMI Blog2013 (1) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... we order that the refund amount should be paid to the Respondent forthwith. When there is no invoice raised or issued for collection of an amount as Service Tax, the question of depositing the same with the Government does not arise. In favour of assessee - ST/615 OF 2010 - A/1303/WZB/AHD OF 2012 - Dated:- 24-8-2012 - M.V. RAVINDRAN, J. S.J. Vyas for the Appellant. Manoj Kutty for the Respondent. ORDER M.V. Ravindran, Judicial Member - This appeal is filed by the Revenue against Order-in-Original No. STC/13/COMMR/AHD/2010, dt. 31.08.2010, passed by the Commissioner as a revisionary authority under section 84 of Finance Act, 1994. 2. Heard both sides and perused the records. 3. The issue, in brief, is reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss income from the card room in the month of April 2006 is ₹ 1,25,078/-. The service provider has shown the break-up of the said gross income as ₹ 1,12,770/- Net Income + ₹ 12,308/- Service Tax. Thus, the gross amount collected from the clients is inclusive of Service Tax and it is clear that the Service Tax has been collected from the client. The adjudicating authority has also observed that the service provider has paid the Service Tax out of gross amount collected from the clients. This clearly indicates that the gross amount collected from the clients was inclusive of Service Tax. Thus, the doctrine of unjust enrichment in terms of the provisions of section 12B of Central Excise Act, 1944 as made applicable to Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategorical factual finding recorded by the adjudicating authority, there is no contrary evidence produced by the Department. It is also his submission that in an identical set of facts in respect of another assessee, the Division Bench of the Tribunal in the case of CST v. V.S. Infrastructure Ltd. 2012 [Final Order No. ST/281/2011, dated 7-7-2011], had held that the question of unjust enrichment does not arise. As regards invocation of section 73A of Finance Act, 1994, it is his submission that the said provision can be invoked only when the amount is charged as Service Tax liability and in this case there is no charge as the amount has been paid by him working back from the amount received from the non-members. 8. After considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi High Court struck down the circular vide orders in W.P.(C) No. 8552/04. Consequently the Respondent filed refund claim for the service tax paid by it. The Deputy Commissioner of Central Excise processing the refund claim was of the view that the Respondent had passed on the Service Tax to the Asset Management Companies and, it had not discharged the burden of proof that it was not getting unjust enrichment through the refund of duties paid and proposed to reject the refund claim of such grounds. After considering the reply of the Respondent, the Deputy Commissioner rejected the refund claim of the Respondent on the ground that it had passed on the incidence to the Asset Management Companies. Aggrieved by the order, the Respondent filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits that similar issue was considered by the Tribunal in the case of Panihati Rubber Ltd. v. CCE 2001 (127) ELT 742 (Tri. - Cal.). This was a case where the assessee was to supply material to the Indian railways. The contract was for supply of the items at a particular rate inclusive of all duties. The question whether Central Excise duties were leviable was under dispute. Pending decision in the dispute, the assessee cleared the goods showing excise duty as applicable. Finally, it was decided that the excise duty was not payable. Then the assessee applied for refund and the issue of unjust enrichment was to be decided. The Tribunal decided that in that case there was no unjust enrichment because the total price was fixed and the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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