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TMI Blog2013 (11) TMI 1358X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal. 2. The appellant is a dealer in motor cycles manufactured by Hero Honda Motors Ltd. During the period July 2001 to August 2004 they provided 'free service' to the motor vehicles sold during the warranty period. For such 'free service' they were getting service charge from Hero Honda Motors Ltd, the manufacturers of motor vehicles. They collected the service tax at the applicable rates on the value of service from the customers who had purchased the motor vehicles and remitted such amounts to the government. They also collected 50% of tax the incidence from Hero Honda Motors Ltd. who was paying the consideration for providing the service. However, this 50% of tax element was not deposited with the Government. Therefore, the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, the appellant filed refund claim for a sum of Rs.45,094.35 being service tax collected by them for the period from August 2002 to November 2004 and deposited vide TR 6 Challan dated 31.12.2004 for Rs.34,073/- and TR6 Challan dated 31.12.2004 for Rs.11,021.35. The Assistant Commissioner issued show-cause notice and rejected the refund claim on the ground that this refund claim involves unjust enrichment in terms of provisions of Section 11B of the Central Excise Act, 1944 made applicable also for refund of service tax collected. On adjudication of the show-cause notice, the refund claim was rejected vide Order-in-Original dated 27.9.2011 issued by Assistant Commissioner of Dindigul-I Division. Against this order, the appellant filed an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. They had specifically scored out declaration in para 7 of the refund application form making it obvious that tax incidence has been passed on. Therefore, the appellant had clearly passed on the incidence to Hero Honda Motors Ltd. The order of the Tribunal dated 25.11.2010 could have enabled Honda Motors Ltd.to claim refund but the appellant could not have claimed any refund. He further submits that an erroneous order passed by one Deputy Commissioner in a Central Excise Division cannot be a hurdle in implementing the provisions of Section 11B of the Central Excise Act and if such estoppels are implemented hardly anything may be left in the enacted law because the officers while interpreting law may make mistakes. Now that the issue has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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