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TMI Blog2022 (2) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent services relating to hotel business. For the purpose they were also serving liquor to their guests in the hotel under the license which was issued to them by the State Government. The Department during the audit conducted on 15.11.2017 observed that the appellant had not paid Service Tax of Rs. 234750/- on an amount of Rs. 15,65,000/- paid to the Rajasthan State Excise Department during 2017-18, for the said license. Agreeing to the said finding the appellant deposited the aforesaid amount of Service Tax alongwith the interest of Rs. 27,012/- on 18.11.2017. However, vide the Finance Act, 2019 Clause 116 was introduced by virtue of which retrospective exemption was granted from levy of service tax on grant of liquor license. The claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellant from their customers. The observation is alleged to have been absolutely wrong. It is submitted that the payment of Service Tax was made in the year 2017. However, the amendment with retrospective effect, came into existence in 2019 within 6 months thereof the refund in question was filed. Hence there arises no question of recovering the amount in question from the customers. It is further submitted that another ground of rejection is of showing the said amount in profit and loss account is also not sustainable because since the payment was made by the appellant the same has rightly been reflected as the expense in PLA account. The said mention cannot suomoto be considered as the proof of passing on of the burden of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the subsequent amendment in the law." The following are the admitted facts relevant to adjudicate the above question:- (i) The appellant had paid the licenses fee of Rs. 15,65,000/- to the State Government of Rajasthan for obtaining a liquor license on 23.02.2017 for the Financial Year 2017-18. (ii) The appellant was liable under reverse charge mechanism to pay the Service Tax which was not paid by the appellant at the appropriate time i.e. during 2017-18. (iii) Immediately after it was pointed out by the audit team of the Revenue while auditing for period April 2016 to June, 2017 on 15.11.2017 that the appellant deposited the amount of his service tax liability under RCM i.e. Rs. 234750/- within 3 days of the same b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided by the State Government by way of grant of liquor licence, against consideration in the form of license fee or application fee, by whatever name called, during the period commencing from the 1st day of April, 2016 and ending with the 30th day of June, 2017 (both days inclusive). (2) Refund shall be made of all such service tax which has been collected. But which would not have been so collected, had sub-section (1) been in force at all material times: Provided that an application for the claim of refund of service tax shall be made within a period of six months from the date on which the Finance (No.2) Bill, 2019 receives the assent of the President." 8. These admitted facts when read with the aforesaid provision are sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tch of imagination, it can be presumed that the burden of said payment would have been passed on to the customers. Department has not produced any positive evidence to prove the same. Otherwise also the only reason for such presumption is that the aforesaid amount has been shown as an expense in profit and loss account by the appellant. To my opinion in the given circumstances since the payment was made under RCM there appears no error on part of appellant when the said payment is shown as expense in the profit and loss account. 10. Commissioner (A) has relied upon the decision of Hon'ble Apex Court in the case of Maffatlal Industries (supra), while confirming his opinion about the impugned amount to be an expense. No doubt in the said cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unjust enrichment. Since the refund has been filed only due to the introduction of the said clause, the said principle otherwise also cannot be implied that too, for the purpose of rejecting the refund claim which is made permissible under the said clause due to the element of retrospectivity therein. 12. Finally, I observe that Commissioner (A) has failed to appreciate the Chartered Accountants Certificate dated 17.11.2019 as was issued by the statutory auditors of the appellant alongwith the relevant pages of the balance-sheet for the year 2016-17 and 2017-18. The said documents were appreciated by original adjudicating authority to have been shown the pre-paid expenses of Rs. 1,29,17,302/- under the note No.20 of the audited balance sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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