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TMI Blog2018 (7) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... equently hit by the principles of unjust enrichment. Regarding the refund amount of ₹ 12,86,403/-, the Ld. Commissioner(Appeals) has upheld the same observing that once the duty is refundable, there is no question of imposition of penalty and recovery of interest. Appeal allowed in part. - ST/13444/2013 - A/11198/2018 - Dated:- 5-4-2018 - Dr. D. M. Misra, Member (Judicial) and Mr. Devender Singh, Member (Technical) For Appellant (s) : Shri J. Nagori, AR For Respondent (s): Shri Rohan Thakkar, CA ORDER Per : Dr. D. M. Misra Heard both sides. 2. This is an appeal filed by the Revenue against the OIA-242-2013-RAJ-CE-AK-COMMR-A-AHD dated 10.05.2013 passed by the Commissioner (Appeals) of Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the customers, but, retained by the respondent when the amount of service tax had been built into the price of the ticket and the said amount has been shown as expenditure in their books of account. It is his contention that this Tribunal has already considering the issue in the case of M/s Rajdhani Travels Ors. vs. Commissioner (Appeals) of Central Excise-Ahmedabad vide Final Order No. A/10597-10600/2018 dated 27.03.2018 on the same set of facts and circumstances held that service providers could not establish the fact that the burden of service tax claimed as refund has not been passed on to the customers, when the same was shown as an expenditure in their books of accounts. 5. The Ld. Chartered Accountant for the Respondent has su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in M/s Rajdhani Travels Ors case (supra). Referring to and relying upon the judgement of the Tribunal in the case of Hindustan Petroleum Corporation Ltd. Vs. CCE, Mumbai-II 2016-TIOL-658-CESTAT-MUM, it has been concluded that once the refund amount has been shown as an expenditure in the books of accounts, accordingly it enters into the cost of the service, then inevitably the burden of tax is passed on to customers/others, and consequently hit by the principles of unjust enrichment. The principle laid down in Hindustan Petroleum Corporation Ltd s case (supra) reads 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assert that even in the circumstances where the amount claimed to be refund is adjusted against the expenditure, the same can be claimed as refund and is not hit by bar of unjust enrichment. 4.2 Learned C.A. had argued that no evidence of any change in the price of service offered by them before and after such absorption of this refund amount against expenditure has been shown to prove that the burden of Service Tax has been passed on to other customers. To counter this argument, learned AR has relied on the decision of Allied Photographics India Ltd. - 2004 (166) ELT 3 (SC) = 2004-TIOL-27-SC-CX, wherein Hon'ble Apex Court has observed as follows:- 18. Before concluding, we may state that uniformity in price before and after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 observations would be applicable in the case of captive consumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m others is blind statement without any reasoning or arguments. 8. We do not find any reason to deviate from the aforesaid finding/conclusion of the Tribunal and we have no hesitation in applying the said principle to the facts and circumstances of the present case, which are similar in nature to the aforesaid case. In our considered view, the judgements referred to by the Ld. Chartered Accountant for the Appellant is not applicable to the facts and circumstances of the present case, inasmuch as, the service tax claimed as refund, in those cases, has not been shown/booked in the balance sheet as an expenditure and entered into the cost of the service/goods. In other words, the facts and circumstances involved in the said cases are on a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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