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TMI Blog2022 (3) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, under Section 11B of Central Excise Act, 1944, as made applicable to service tax, matters as per Section 83 of Finance Act, 1994 on the grounds that the same is barred by limitation of time and also hit by the clause of unjust enrichment." 2.1 On the basis of an investigation, it was noticed that the appellant was providing "Business Support service" and "Cleaning agency service". Accordingly, a Show Cause Notice was issued by Joint Commissioner for demand of Service Tax of Rs. 41,68,501/-. The Joint Commissioner finally passed Order-in Original No. 84/JC(Adj)/2009 dated 31.12.2009 vide F.No.84/JC(ADJ)/2009 confirming Rs. 37,32,373/- with interest and appropriated Rs. 5,61,734/- already paid by the appellant. Against the said OIO, the appellant appealed to the Commissioner (Appeals) who passed the Order in Appeal vide No. AKP/251/NSK/2010 dated 31.08.2010 wherein the appellate authority confirmed Rs. 10,46,403/- only and dropped the remaining demand. Both the appellant and the revenue filed appeals before CESTAT. CESTAT issued an order (Final Order No. A/2585-2586/15/STB dated 05.08.2015) rejecting both the appeals and upheld Commissioner (Appeals)'s order. 2.2 Consequent upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt request for an adjournment, the matter is adjourned to 07/04/2021. 13 Date of Hearing: 07.04.2021 Learned Advocate sought Adjournment as they have to receive instruction from the client. . Adjourned to 07/05/2021 14 Date of Hearing: 07.05.2021 Adjourned due to pandemic conditions 15 Date of Hearing: 06.08.2021 Matter is adjourned to 23/09/2021. 16 Date of Hearing: 23.09.2021 None appeared for the applicant. Heard the ld. AR for Revenue. - 2. There is a delay of 89 days in filing appeal before the Tribunal. The reason explained in the Miscellaneous Application seems reasonable. Accordingly, in the interest of justice, the delay in filing the appeal is condoned. Appeal to come up for hearing in due course of time 17 Date of Hearing: 22.10.2021 None for appellant. Advocate on record has no brief. Adjourned to 15th December 2021. Registry to issue notice to appellant. 18 Date of Hearing: 15.12.2021 Appellant is absent. No one represented it. Learned Authorised Representative Mr. Dilip Shinde is present. Hearing is adjourned to 24/02/2022. 3.2 Interestingly even the application for condonation of delay was adjudged by the tribunal in favour of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has not collected the Service tax from the Service recipient, he has paid from own pocket, still he has rejected the appeal on unjust enrichment ground also. 2.2 The impugned order has been passed by the Ld. Commissioner without application of mind and without appreciating the facts. 2.3 Page no 18 of appeal memo missing from the appeal file of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. Tlue "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi judicial performance." 2.4 Thus, the impugned order being a non speaking order and not on factual and has been passed in gross violation of principles of equity, fair play and natural justice. Therefore, the impugned order is liable to be set aside on this ground alone. 3. Brief facts - 3.1 The appellant are Partnership firm (hereinafter referred to as the appellant'). The appellant are small time contractors who undertake activities of cleaning, loading, unloading, collection of coal mill reject etc." The preventive wing of Central Excise department has initiated enquiry and asked to pay the service tax under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies Ltd. Versus Commissioner Of Central Excise, Calicut 2014 (301) E.L.T. 288 (Ker.) 4.3.4 KunjBehari Dye Chem Private Limited v. CCE (Appeal II), Bangalore 2011 (22) S.T.R. 253 (T) = 2009 (241) E,LT. 84 (Tri. Bang.) 4.3.5 Gujarat State Fertilizers & Chem. Ltd. v. CCE, Vadodara - 2005 (186) E.L.T. 607 (Tri. - Mumbai) 4.3.6 Konark Cylinders v. CCE, BBSR - 2002 (144) E.L.T. 454 (Tri-Kolkata) 4.3.7 Nelco Limited v. UOI - 2002 (144) E.L.T. 56 (Bom.) 4.3.8 CCE, Chennai-III v. Consul Consolidated P. Ltd. - 2002 (141) E.L.T. 792 (Tri. - Chennai) 4.3.9 Winco Limited v. UOI - 1989 (43) E.L.T. 628 (All.)." 5 The appellant crave leave to add, alter, amend and/or rescind any of the above submissions at the time of or before the personal hearing. 6 The appellant crave leave to refer and rely upon any judgment/case law, as and when produced. 7. In view of the foregoing submissions, it is respectfully prayed that the OIO is set aside, the facts and circumstances of the case. Place :Nashik Date: 20.09.2018 For M/s B.M. Chapalkar & Co. Shium Bhima Chapalkar PARTNER 4.3 From the above grounds as stated it appears that appellant has challenged the order of Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at duty was not leviable on the transaction, he will get back the duty paid. Ordinarily speaking, no manufacturer would take the risk of not passing on the burden of duty. It would not be an exaggerating to say that whenever a manufacturer entertains a doubt, he would pass on the duty rather than not passing it on." 36. In case of Hindustan Petroleum Corporation Ltd. Vs. CCE, Mumbai-II reported at 2015(317) ELT 379 (Tri. Mum), the tribunal observed that when refund amount due is not reflected in the books of account as claims receivable', and same was treated as expenditure, the claimant cannot be said to have passed the test of unjust enrichment. The relevant para of the judgment is reproduced below. 6.7 In the present case, it is an admitted position that the refund amount due was not reflected in the books of account of HPCL as claims receivable. This implies that the duty paid was shown as current expenditure and formed part 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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