9911796707
TMI Blog2018 (2) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... as unconstitutional - Though the learned counsel for the assessee has submitted that the entire amount which is claimed as refund was paid under protest but it is not clear from the order of the Commissioner (Appeals) that whether the entire amount which is sought to be claimed as refund was paid under protest or not. This case is required to be remanded back to the original authority to examine two things: - (a) Whether the entire service tax was paid under protest or not? - (b) the aspect of unjust enrichment should also be considered by the original authority in view of the documents produced by the assessee along with the certificate of CA certifying that incidence has not been passed on to the client. Appeal allowed by way of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by the assessee were collected from the principal. Thereafter a show-cause notice was issued to the assessee and after following the due process, the adjudicating authority rejected the entire refund. Aggrieved by the said order, assessee filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) vide the impugned order held that (i) in the absence of any evidence to establish that the incidence of service tax has not been passed on to the clients, upheld the decision of the adjudicating authority denying refund of ₹ 15,66,169/- (Rupees Fifteen Lakhs Sixty Six Thousand One Hundred and Sixty Nine only) paid by them on 16.11.2007 for the period from April 2006 to September 2007. (ii) Where the tax was collected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty is subjected to the provision of Section 11B. In support of his submission, the learned AR relied upon the following decisions: a) M/s. Jodhpur Vidyut Vitran Nigam Ltd. Vs. CCE 2017-TIOL-75-CESTAT-DEL. b) Rajasthan State Mines and Minerals Ltd. Vs. CCE, Jaipur-I 2017-TIOL-437-CESTAT-DEL. c) Prince Alloys Pvt. Ltd. Vs. CC 2016-TIOL-2982-CESTAT-BANG. d) Campus Service (India) Pvt. Ltd. Vs. CCE, Coimbatore 2008 (9) S.T.R. 259 (Tri.-Chennai) e) Sarita Handa Exports (P) Ltd. Vs. Union of India 2015 (321) E.L.T. 434 (P H) 4. On the other hand the learned counsel for the assessee defended the impugned order. The learned counsel further submitted that the service tax was paid under protest and therefore the time-li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such cases. 5. After considering the submissions of both the parties and perusal of the material on record, I find that the Commissioner (Appeals) has allowed the refund of ₹ 9,62,543/- (Rupees Nine Lakhs Sixty Two Thousand Five Hundred and Forty Three only) on the ground that the tax was collected without the authority of law and therefore, the time-limit under Section 11B is not applicable. This finding of the Commissioner (Appeals) is not sustainable in law in view of the various decision rendered by the Tribunal and the High Court clearly holding that even in the case of payment of service tax by mistake the time period prescribed under Section 11B is applicable. The Division Bench of this Tribunal in the case of Jodhpur Vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause the incidence of the same has not been passed on to the clients. To substantiate that the amount paid on 16.11.2007 was never collected from the client, the assessee produced the extracts from cash book duly certified by the CA. This piece of evidence has not been considered sufficient by the learned Commissioner (Appeals). Further the assessee has also produced on record the certificate issued by the CA dated 16.10.2017 before this Tribunal which was not produced before the Commissioner (Appeals). After considering the entire material and the evidence on record, I am of the view that this case is required to be remanded back to the original authority to examine two things: Whether the entire service tax was paid under protest or n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
