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TMI Blog2017 (10) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... g recorded by the Appellate Tribunal that M/s.Emami Limited did not pass on incidence of service tax on the 15% amount to its customers or buyers of the products. The burden was on the respondent to establish that M/s.Emami has not passed on the incidence of service tax to any other person including its customers or purchasers of the products. Thus, even going by the finding of fact recorded by the Appellate Tribunal and the finding of fact recorded by the Deputy Commissioner, the respondent did not establish that the incidence of service tax has not been passed by M/s.Emami Limited to any other person. The finding recorded by the Commissioner (Appeals) has not been disturbed by the Appellate Tribunal. Appeal allowed - decided in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... client, it is observed from the bills raised to M/s.Emami Ltd by M/s.Prachar Communications Ltd, that they charged discounted amount to their clients but paid service tax on the prediscounted amount i.e on the commission @ 15% allowed by the media on the mount billed to them towards the telecast/broadcasting charges, however, after realizing their mistakes that they were erroneously paying service tax on higher value than the actual value of services received from their clients i.e M/s.Emami Ltd, they raised credit notes No.31 dated 31.3.2000 and 3 dated 16.8.2000 for ₹ 1,14,060/and 3,67,935/respectively, towards extra service tax charged to M/s.Emami Ltd. In support of their claims they have produced the copies of credit notes No.31/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved by the said order, the respondent preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (Appellate Tribunal). By the impugned Judgment and order, the said appeal has been allowed and the order of the Commissioner of the Central Excise, Mumbai was set aside. Hence, the orders granting the refund were restored. 6 This appeal was admitted on the substantial questions of law incorporated in paragraph 4 of the Memorandum of Appeal. 7 The said substantial questions of law are as follows: (A) Whether the Respondents are entitled to refund of the excess service tax paid by them in terms of Rule 6 of the Service Tax Rules? (B) Whether post clearance adjustment like issue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the incidence of such duty has not been passed on by him to any other person. Section 11B(2) provides that in case it is found that a part of duty of excise paid is refundable, the amount shall be credited to the fund. Section 2(ee) defines Fund to mean the Consumer Welfare Fund established under Section 12C. There is a proviso to Section 11B (2) which postulates that the amount of excise duty which is refundable may be paid to the applicant instead of being credited to the fund, if such amount is relatable to the duty of excise paid by the manufacturer and he had not passed on the incidence of such duty to any other person. Clause (e) to proviso of Section 11B(2) also enables the buyer to receive the refund if he had borne the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orne the burden of tax and is in a position to establish that fact, is yet not entitled to apply for refund of the duty since the Rules do not provide for such a situation. The Rules contemplates only grants being made to Consumer Welfare Societies. Even in the matter of making grants, it is submitted the Rules are so framed as to make it highly difficult for any consumer organization to get the grant. There is no provision in the Act, Shri Nariman submitted, to locate the person really entitled to refund and to make over the money to him. We expect a sensitive Government not to bluff but to hand back the amounts to those entitled thereto , intoned Shri Nariman. It is a colourable devicedeclaimed Shri Sorabjee a dirty trick and a shabb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublished on the media. The contention was that the service tax was erroneously paid by the respondent on the gross amount of the bills before the discount was allowed of 15% of the gross bill amount. The contention was that incidence of service tax payable on 15% amount has not been passed on to any other person by the respondent. 11 We have already quoted the findings recorded by the Deputy Commissioner as well as the Commissioner (Appeals). The findings recorded are that the refund claim was based only on two credit notes and ledger account of M/s.Emami Limited. The Deputy Commissioner held that he was convinced that there is no unjust enrichment in this case. The finding recorded by the Commissioner of Central Excise is already quoted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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