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TMI Blog2015 (9) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... stomers, question of unjust enrichment arises and the appellant is not able to dislodge the presumptions and that they have recovered the amount of service tax from their customers. On this factual matrix, the appeal fails on the ground of unjust enrichment. - Decided against assessee. - Appeal No. ST/206/2010 - A/2501/2015-WZB/STB - Dated:- 29-7-2015 - M V Ravichandran, Member (J) And C J Mathew, Member (T), JJ. For the Appellant : Shri T C Nair, Adv For the Respondent : Shri K S Mishra, Additional Commissioner (AR) ORDER Per: M V Ravindran: This appeal is directed against Order-in-Appeal No. CEX/GOA/VSK/08/2010 dated 22/01/2010 passed by the Commissioner of Central Excise Customs (Appeals), Goa. 2. The relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned advocate appeared on behalf of the appellant would draw our attention to the findings recorded by both the lower authorities. It is his submission that service tax liability is not payable under Business Auxiliary Services' prior to 01/06/2007, as recorded by the first appellate authority and Revenue is not in appeal against such an order. It is his submission that when the authorities are accepting that the tax is not payable, then such amount should be refunded to the appellant as it has been withheld by the department without authority of law. It is his submission that for this proposition he would rely upon the judgment of Hon'ble High Court of Karnataka in the case of Commissioner of Central Excise vs. KVR Construction 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tomers. 4. Learned Departmental Representative reiterated the findings of the first appellate authority and submits that the appellant has not been able to demonstrate that they have not recovered the amount of service tax from their customers. It is submitted that, for the period 01/06/2007 onwards there is no dispute but the dispute is for the period prior to 01/06/2007 wherein the appellant themselves have paid the service tax under the category of Business Auxiliary Service'. He would submit that though the appellant has claimed limitation will not apply in a situation where tax is recovered without authority of law, question of limitation would arise in this case as the appellant themselves have classified their services under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d bill that the appellant has not charged any service tax separately but when the revenue authorities directed them to pay service tax under the category of Business Auxiliary Service', it is seen that the appellant had discharged service tax liability considering the amount recovered from their customers as cum-tax amount and worked out the service tax liability. This point is not disputed by the appellant in their appeal memorandum. If that be so, it would mean that the amount which has been billed by the appellant to their customers and paid by their customers includes service tax liability and the same has to be held as being passed on to the customers. On this factual matrix, we find that the certificate issued by the Chartered Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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