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TMI Blog2015 (8) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No.25/12-ST dated 20.6.2012 ("the Mega Exemption Notification"). The appellant inadvertently paid service tax of Rs. 16,07,399/-, on the educational services rendered by them which were exempted under Notification No.25/12-ST dated 20.6.2012. The appellant then filed a refund claim of service tax deposited erroneously. Though Rs. 16,07,399/- was deposited erroneously, the appellant filed refund claim of Rs. 12,74,906/- only for the reason according to the appellant, that as regards this amount, the tax incidence had not been passed on to other. The appellant did not claim refund of Rs. 3,32,493/- as the invoices issued by the appellant charged service tax separately. These aspects were submitted in detail along with necessary docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been passed on. He relied upon the decision of the Apex Court rendered in Sahakari Khand Udyog Mandal Ltd. Vs. CCE-2005 (181) ELT 328 (SC) . 4. The short issue involved in this appeal is whether the refund claim is hit by the bar of unjust enrichment. 5. At the outset, it has to be stated that the Commissioner (Appeals) has discussed in detail as to the issue of unjust enrichment and whether the fee mentioned in the agreement is inclusive of tax. The relevant portion of para 9 of the Order-in-Appeal dated 31.12.2014 is reproduced below:- 9. In view of the aforesaid discussions, I am of the considered opinion that the appellant has passed on the burden of Service Tax paid to the customers and therefore there is no infirmity in the Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. Section 12B. Presumption that the incidence of duty has been passed on to the buyer. - Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. 8. Initial burden to establish that the incidence of duty/tax has not been passed on is upon the assessee. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered the rival submissions and also perused the records. In the first category of cases where the appellant admits that the incidence of tax has been passed on, the invoice shows as under:- Programme fee - Rs.25,000/- Service Tax @ 12.36% - Rs.3,090/- Total amount due - Rs.28,090/- 11. The second category of cases where the appellant contends that the incidence of tax has not been passed on and that service tax is inclusive in the fees is only material for consideration. On scrutiny of the sample copy of the agreement and invoices relating to the second category, I am not able to agree with the submissions made on behalf of the appellant. Annexure 'B' of the agreement entered between the appellant and Primus Public Schoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d.-2014 (36) STR 1167 (Tri.-Del.), wherein the refund was sought on the ground that the service tax was remitted by assessee on the rendition of erection, commissioning and installation of transformers at different sites of PSEB, that this service was exempted from the liability of service tax under exemption notification Nos.11/10-ST dated 27.2.2010 and Notification No.32/2010-ST dated 22.6.2010, that the assessee had erroneously remitted service tax despite the service being exempted. One of the grounds for rejection of refund claim was that the work orders between the assessee and PSEB revealed that rates specified for remunerating the assessee for services rendered included service tax and therefore the service tax component stood inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed through the equipment installed by them and the rate is fixed on that basis. Thus, the charges are not in the nature of rental for a particular day or particular period but with reference to the work performed. Invoices do not indicate any tax element separately. Under the circumstances, it has to be held that the rates quoted and amount collected are inclusive of service tax". 16. It is not in dispute that the agreement stipulates the value inclusive of taxes. The invoices issued also indicate that amount collected is inclusive of service tax. Undeniably the presumption under section 12B is raised that the incidence of tax is passed on to the customer. In such circumstances the appellant has to establish by evidence that the service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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