9911796707
TMI Blog2015 (8) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... as been able to rebut the charge of unjust enrichment. 3. The facts of the case, in brief, are the respondent had availed the services of goods transport operators during the period16/11/1997 to 02/01/1998. Revenue authorities were of the view that respondent is liable to discharge service tax as a recipient of service. A show cause notice dated 01.08.2002 was issued demanding service tax and interest thereof and for imposition of penalty. The respondent discharged the service tax liability under protest and contested the issue on merits before the higher judicial fora. After protracted litigation in the matter the Tribunal vide final order no. A/1456-1457/13 dated 04.04.2013 had allowed the appeal of respondent and held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iture that too as business expenses, the respondent assessee would include this amount in the costing of final products. It is his submission that once an amount is shown as expenses it automatically enters into pricing of the products though it may not form part of costing because of some accounting standards or statutory obligations. It is his submission that the respondent should have shown the said amount as assets or as deposits or as receivables in the books of accounts. It is his submission even if the price of the final product does not change, it does not mean that the amount which is shown as expenses is not part of the cost of the final product. It is his submission that the chartered accountant s certificate is silent as to what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they have passed the hurdle of unjust enrichment. The findings of the first appellate authority are as under: "In this case it could be all the more difficult for the appellant to pass on the Service Tax burden by enhancing the price of goods or Services relating to their other Divisions as their concerned steel unit had been divested long back in 2000-2001 itself. Deputy Commissioner has also not cited any evidence or dropped any hint that the appellant had ever increased the price of the goods or services during the year 2003-2004 on account of which there could be even faintest foundation for arriving at the conclusion that the burden of Service Tax was passed on to the customer of their other business through instrumentality of pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen from the grounds of appeal that there is no rebuttal nor any contrary evidence has been produced. The certificate issued by the chartered accountant which was produced before lower authorities reads as under: 10. If the revenue authorities were not inclined to accept the chartered account are content certificate, they should have adduced some evidence that the incidence of duty has been passed on nor any further clarification was sought from respondent or their CA. Feeble attempt is made in the grounds of appeal to state that it is not clear as what records were checked by the chartered accountant. In my view, a chartered accountant is an expert and as can be seen from the above reproduced certificate, he has verified the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificate, I find that he has clearly mentioned that debit to sundry adjustment account does not amount to passing on expenses/losses to the customers. This finding has not been challenged by the Revenue except saying that this is vague. This finding is very specific and if the Revenue has any doubt on the same it could have asked for further clarification from the Chartered Accountant. Having not done so I hold that Chartered Accountant certificate is clear that such amounts are not passed on to the customer and I accordingly hold that incidence of duty has not been passed on to the customers. In view of this refund cannot be credited to the Consumer Welfare Account and the appellants are entitled to the same. I accordingly, set aside the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue involved in this case is of refund of the service tax, which was subsequently paid by the assessee, due to the retrospective amendment, as regards the Service tax liability as recipient of services GTA, I find that issue is squarely covered in favour of the respondent and the Commissioner (Appeals) has come to correct conclusion. Accordingly, the appeal filed by the revenue is rejected." 13. In view of the foregoing and in the peculiar facts and circumstances of this case, it has to be held that there is no infirmity in the impugned order. 14. Since I have disposed off the appeal on merits itself, I am not recording any findings on various other submissions made by both sides. 15. The impugned order is upheld and the appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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