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TMI Blog2017 (7) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... - ST/88683/13 - A/88066/17/STB - Dated:- 16-6-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri A.R. Krishnan, C.A. with Shri Girish Raman, C.A. for Appellant Shri S.R. Nair, E.O. (AR) for Respondent ORDER Per: Raju This appeal has been filed by M/s United Liner Agencies of India (Pvt) Ltd. against rejection of claim of refund of Service Tax paid by the appellant on the warehousing service. Aggrieved by the order of lower authorities, the appellants are before Tribunal. 2. Learned Chartered Accountant for the appellant argued that investigations were opened against them and demand of Service Tax raised in respect of warehousing service allegedly provided in respect of abandoned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the refund was claimed of duty paid on inputs which necessarily go into the final products, which are sold in the market. Learned C.A. argued that in the instant case, the refund is not in respect of any inputs but in respect of Service Tax paid wrongly. Thus, the decision of Hon'ble Apex Court is distinguishable on that count. He further argued that just because they have shown the said amount of duty paid against the expenditure in the Books of Account, is not enough to allege that the burden of duty has been passed on. For this proposition, he relied on the following case laws: - (a) Flow Tech Power -2006 (202) ELT 404 (Mad) (b) Cummins India Ltd. - 2008 (221) ELT 525 (Tri-Mum) (c) Ved Textiles Pvt. Ltd. - 2007 (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Service Tax has not been passed on. Learned AR also relied on the decision of the Tribunal in the case of HPCL - 2015 (317) ELT 379 to assert that if the amount claimed as refund is shown as expenditure and not claimed receivable then there is presumption that the duty burden has been passed on. 4. We have gone through the rival submissions. It is seen that the appellants have paid Service Tax in the following manner: - Period Date of payment Service Tax (inclusive of Edu. Cess) Interest Total 01.10.2004 31.03.2005 27.11.2006 1,70,926/- 45,719/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, there is an obvious conclusion that the said amount has been passed on to the various other service recipient. 4.1 The appellants have relied on the C.A. certificate on which no findings have been given by the lower authorities. The Chartered Accountant has given his observation as under: - On examination and verification of the audited books of accounts, financial statements, records and TR-6 challans as maintained and produced by ULAI for the purpose of our review and verification and based on the information furnished to us, we certify that ULAI has not recovered the amount of Service Tax (Incl. cess) and interest paid as shown in the above table from its customers or any other person. It is seen that C.A. has made a blin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . To counter this argument, learned AR has relied on the decision of Allied Photographics India Ltd. 2004 (166) ELT 3 (SC), wherein Hon'ble Apex Court has observed as follows: - 18. Before concluding, we may state that uniformity in price before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors. Hence, even on merits, the respondent has failed to make out a case for refund. Since relevant factors stated above have not been examined by the authorities below, we do not find merit in the contention of the respondent that this Court should not interfere under Article 136 of the Constitution in view of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they are not eligible to claim the refund. 4.4 Hon'ble Apex Court in the case of Solar Pesticide (supra) has examined the issue of unjust enrichment and observed as follows: - 20. We are of the opinion that the aforesaid observations would be applicable in the case of captive consumption as well. To claim refund of duty it is immaterial whether the goods imported are used by the importer himself and the duty thereon passed on to the purchaser of the finished product or that the imported goods are sold as such with the incidence of tax being passed on to the buyer. In either case the principle of unjust enrichment will apply and the person responsible for paying the import duty would not be entitled to get the refund becau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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