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TMI Blog2018 (4) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... der-in-appeal No. 142-145-2012-BVR-SKS-COMMR-A-AHD dated 28.12.2012 passed by Commissioner (Appeals), Central Excise-Ahmedabad. 2. The appellants herein are engaged in providing taxable services under the category of Tour Operator Service during the relevant period. By virtue of retrospective effect to the exemption Notification 20/2009-ST dated 07.07.2009 read with corrigendum dated 31.08.2009, under Section 75 of the Finance Act, 2011, the tax paid during the relevant period i.e. from 1.4.2000 to 6.7.2009 became admissible as refund to the appellants. Consequently, the appellants filed refund claims with the department, within the period stipulated under the Finance Act,2011, which though sanctioned, but, was transferred to the consumer welfare fund on the ground of unjust enrichment. Aggrieved by the orders of the Adjudicating Authority, the appellants filed appeals before the Ld. Commissioner (Appeals), who inturn, rejected their appeals. Hence, the present appeals. 3. The Appellants M/s Tanna Travels Agency and M/s Rajdhani Travels are represented by the Advocates Shri S.J. Vyas and other two Appellants neither appeared in the past, nor sought adjournment. Since, the issue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich prescribed that only where any tax or duty is shown as receivable in the books of accounts, only then it could be accepted that incidence of duty has not been passed on to other persons. It is his contention that the authorities below should not have rejected the Chartered Accountant s Certificate as held by the Tribunal in the case of Commmissioner vs. Shethia Audio 2003 (161) ELT 452 (Tri.-Mumbai), Brindavan Tax Processors Pvt. Ltd. Vs. Commissioner of Central Excise, Bangalore 2006 (196) ELT 61 (Tri.Bang.), Gopi Krishna Processors Pvt. Ltd. Vs. Commissioner of Central Excise, Jalandhar 2007 (210) ELT 529 (Tri.-Del.), and also a judgement of the Hon'ble Gujarat High Court in the case of Mangal Textile Mills Ltd. 2004 (171) ELT 160 (Guj.). 6. Ld. AR for the Revenue on the other hand has submitted that the service tax paid by the appellants, undisputedly, shown as expenditure in their books of accounts which means that the same has entered into cost of the services provided and accordingly recovered from the customers. Further, he has submitted that merely because the price before and after the exemption notification, remained the same, it could not be construed that the inci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of Tribunal following the earlier judgment of this Tribunal in the case Hindustan Petroleum Corporation Ltd. Vs. CCE, Mumbai-II 2016-TIOL-658-CESTAT-MUM has observed as follows:- "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 observations 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 blind observation regarding the non recovery of Service Tax and interest from the customers or any other person. If the said amount has not been recovered from anybody then the same should appeal somewhere in the Balance-sheet as amount receivable from Govt. The fact that it has been shown against expenditure itself indicates that the said amount has been passed on to other cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Profit and Loss account of the assessee. Thus, if the claimant himself has treated the refund amount due as expenditure and not as "claims receivable", the claimant cannot said to have passed the test of unjust enrichment. This is the settled position in law. The appellant has also contended that the appellant's goods are sold at prices determined by the Govt. and therefore, it should be presumed that the appellant has borne the incidence. Similar argument has been negated by the hon'ble Apex Court in Allied Photographic India Ltd. [2004 (166) ELT 3 (SC)] =2004-TIOL-27-SC-CX, wherein it was held 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". Therefore, in the present case, the appellant HPCL has failed to cross the bar of unjust enrichment also and hence 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 observa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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