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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 ..... absence of such evidence the presumption stands unrebutted. - fees stipulated in the agreement were inclusive of taxes and the invoices issued indicate that the amount includes service tax the refund claim is hit by the bar of unjust enrichment - Decided against assessee. - Appeal No.ST/50975/2015/ST-SM - FINAL ORDER NO. 52021/2015 - Dated:- 26-6-2015 - Sulekha Beevi CS, Member (J),J. For the Appellant : Shri Vimal Jain, Adv. For the Respondent : Shri R K Grover, AR ORDER Per Sulekha Beevi CS: Brief facts of the case are as below:- 1.1 The appellant, M/s.Mind Edutainment Pvt.Ltd. are engaged in providing educational services and holds Service Tax registration under the category of Commercial Training Coachin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is submitted by him that the appellant had filed refund claim only in respect of amount where no service tax has been charged separately from service recipient. The learned Counsel relied upon the judgements rendered in CCE, Chandigarh-II vs. J.R. Transformer Pvt.Ltd.-2014 (36) STR 1167 (Tri.-Del.) and CST, Delhi vs. A.P.Engineers-2014 (34) STR 795 (Tri.-Del.). It is further submitted that the appellant had produced certificate of Chartered Accountant and also the Balance Sheet for the relevant Financial Year 2012-13 to substantiate that the incidence of tax has not been passed on to the customer. 3. Against this, learned Departmental Representative contended that the refund claim was rightly rejected being hit by the bar of unjust en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment is a just and salutary doctrine. It prevents collection of duty from both the ends. The doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Before claiming a relief, the applicant has to establish that he has borne the amount for which relief is sought and that he has not passed on the burden to the consumers. In the present case, undisputedly the services were exempted from payment of service tax during the relevant period. It is also not disputed that the appellant paid the tax erroneously. Refund claim is denied on the ground that in agreement entered into between the appellant and service recipient, the consideration, fee is shown as inclusive of tax. 7. The relevant provisions are noticed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x is inclusive in the fees charged and borne by the company itself. Copy of sample invoices where service tax is charged inclusively is produced. 9. In the letter dated October 12, 2013 sent by the appellant to the Superintendent (Refund), Service Tax Division-II, New Delhi, to the queries raised by the Department, the appellant has clarified that the appellant has raised certain invoices wherein service tax has been charged separately and deposited with the Government. The company has not claimed refund of such service tax paid. However, the appellant has also raised certain invoices wherein no service tax has been charged separately. The Company has deposited service tax on such invoices on its own by making backwards calculation of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'My Thinking Program delivery' Amount due - ₹ 1,41,666/- (Inclusive of service tax) 12. It is apparent from the invoice that it is cum-tax invoice and therefore the incidence of tax is passed on to the school/customer. Section 12A makes it mandatory to prominently indicate in the documents/invoices the amounts of such duty which will form part of the price. When the invoice states that the value is inclusive of service tax, the contention of the appellant that the incidence of tax has not been passed on to other is untenable. 13. The appellant further relies on the Chartered Accountant's Certificate and the balance sheet to substantiate that the tax burden has been borne by them. When the invoices raised are s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xes therein and it was borne by the appellant therein without charging the same on M/s.ITDC. The judgements placed by the counsel for appellant would apply in situations where contract value is inclusive of service tax and the same has not been charged separately by the service provider. The appellant herein has issued invoices on cum value basis, and has not produced any evidence to prove that they have refunded the service tax to their customers. 15. The Tribunal, in the case of Concrete Movers Vs. Commissioner of Service Tax, Mumbai-2015 (38) STR 86 (Tri.-Mum.) held that when rate quoted and amount collected are inclusive of taxes, the doctrine of unjust enrichment would be applicable. In para 7 of the said judgement it is held as un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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