9911796707
TMI Blog2015 (8) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... a conclusion that incidence of tax is not passed on. - On the issue of unjust enrichment, of the service tax paid on goods transport operator services for the period in question, this bench in the case of Pauls Engineering Industries Pvt. Ltd., (2008 (2) TMI 82 - CESTAT MUMBAI) has allowed the refund in view of retrospective amendment - There is no infirmity in the impugned order - Decided against Revenue. - Appeal No. ST/89433/14- Mum - - - Dated:- 23-6-2015 - Hon ble Mr. M.V. Ravindran, Member (Judicial),J. For the Appellant : Shri S.V. Nair, Supdt. (AR) For the Respondent : Shri Prasad Paranjape, Advocate ORDER This appeal is directed against Order-in-Appeal No. NSK-EXCUS-000-APP-25-14-15 dated 09.07.2014. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first appellate authority. The first appellate authority held in favour of assessee. 4. The Departmental representative after taking me through the facts of the case, would submit that the issue has not been considered by the first appellate authority correctly. It is his submission that the first appellate authority has not considered the fact that due to retrospective amendment the service tax liability needs to be discharged by the respondent assessee. He would try to take me through the history of the taxability on goods transport operators and submit that once the service tax liability arises, it needs to be discharged and was done so correctly by the respondent assessee, hence the question of refunding the amount does not arise. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpenses. He would specifically draw my attention to the findings recorded by the first appellate authority and submit that there is a categorical finding that the amounts deposited towards purported tax liability was not recoverable from the customers of steel division. He would also submit that the amount paid by the respondent was much after the divesting of steel division. He would submit that just because the amount is shown as expenses mean that the incidence is passed on in final products. He would rely upon the following decisions Birla Corporation Ltd. Vs. CCE 2008 (231) ELT 482 CCE vs. Pauls Engineering Industries P. Ltd. 2008 (10) STR 561 6. I have considered the submissions made at length by both sides. 7. The issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chartered Accountant's certificate is not binding which is not enough. However, after having considered all the above referred facts and reasons, I do not have any hesitation in saying that the appellant has rebutted the initial presumption of having passed on the Tax burden to others and after this point onus was on the department to establish that the appellant had actually passed on the Tax burden to others. But it is seen from above that the Deputy Commissioner has stuck to the above referred presumption till last on the basis of their accountal of Service Tax amount in their Profit Loss account alone and has not considered objectively any other relevant material as discussed above. If no distinction is drawn between presumption a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither directly or indirectly from the customers, doctrine of unjust enrichment will still apply. Similarly proviso (c) to Section 11B(2) is not applicable in the present case as the inputs in this case have admittedly not been received in the factory premises and therefore the question of its use in accordance with law or provisions of notification simply does not arise. However, as regard of 3rd plea, I find that the Commissioner (Appeals) has rejected the Chartered Accountant certificate by just stating that there is no specific mention in the certificate that incidence of duty has not been passed on to any other customers and the certificate is vague. I do not agree with the contention of the ld. DR that once the amount has been shown as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s placed by ld. Commissioner (Appeals) on that certificate, as it was produced, on his direction. 9. It has been rightly pointed out by the ld. Counsel that in the case of B.G. Chitale (supra),I sitting, singly, took a view that the Chartered Accountant s certificate having verified the entire books of accounts and having come to the conclusion that the incidence of duty has not been passed on to the recipients in a case, has to be considered as correct. In view of the fact that already a view on the issue has taken by this court, I find that the order of the Commissioner (Appeals) is correct and does not suffer any infirmity. As regards the claim of ld. SDR as to reference to Larger Bench, I find that the view expressed by this Bench in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
