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TMI Blog2016 (5) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... alleging non-payment of service tax for the period 01-07-2003 to 31-03-2005 for an amount of Rs. 4,44,189/- The appellants paid an amount of Rs. 89,150/- prior to issuance of Show cause notice. After due process of law, the original authority passed order confirming the demand interest and penalty. The appellants filed appeal before the Commissioner (Appeals) and vide Order dated 25-09-2008, the entire demand was set aside allowing the appeal with consequential reliefs, if any. The appellants then filed an application for refund of the amount of Rs. 89,150/- paid by them initially and also furnished a Chartered Accountant Certificate. A show cause notice was issued proposing to reject the claim on the ground of being time barred as per Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enrichment. He relied upon the judgments laid in Advance Steel Tubes Ltd. v. CCE 2014 (310) ELT 370 (Tri. - Delhi), CCE v. Crystal Granite and Marble (P.) Ltd. 2014 (304) ELT 572 (Tri. - Mum.), CCE v. Parle International Ltd. 2013 (4) TMI 75 - CESTAT AHMEDABAD. He pleaded that the appeal may be allowed. 4. Against this, the learned AR submitted that when the amount is shown as shown as expenditure, it can be inferred that the incidence of tax is passed on to other indirectly as it becomes a part of the cost of production. That then it is the burden of the appellant to produce evidence and establish that the incidence of tax is not passed on to another. The appellants having failed to do so, the Commissioner (Appeals) has rightly ordered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd CCE v. Cummins India Ltd. 2007 (10) TMI 117 - CESTAT, MUMBAIthe said issue was analysed and the High Court as well as the Tribunal while deciding the above cases have held that merely because the amount was shown as expenditure, it cannot be concluded that the incidence of duty was passed on to the buyers. 7. Following the ratio in the above judgments, I find that the claim of refund is not hit by the bar of unjust enrichment. The order directing to credit the sanctioned refund to Consumer Welfare Fund is therefore not sustainable. 8. In the result, the impugned order is set aside, to the extent of ordering the sanctioned refund to be credited to the Consumer Welfare fund. I hold that the amount is to be refunded to the appellant. 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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