9911796707
TMI Blog2022 (6) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... ought the dispute to this forum, can be summarised as follows:- 2.1 Appellant is engaged in the business of trading of cars and it is an authorised dealer for Maruti Udyog Ltd. Dealership agreement bounds the Appellant to provide first free servicing to the customers who purchased their Maruti Cars from the Appellant. Two show-cause notices issued to the Appellant in October, 2006 and November, 2006 demanding Service Tax on dealer margin, on the ground that first free service was a part of the Appellant's trading margin received from M/s Maruti, and also on handling charges, on which VAT was already paid by the Appellant. Through an adjudication process in the Order-in-Original such Service Tax demand to the tune of Rs.11,11,997/- alongwit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgement of Hon'ble Bombay High Court in the case of Suvidhe Ltd. Vs. Union of India reported in 1996 (82) ELT 177 (Bom.) had argued that Section 11B of the Central Excise Act would not be applicable for refund of pre-deposit made under provision of Section 35F for which doctrine of unjust enrichment would not be a bar for such refund. He further argued that such payment was made under protest with a clear noting in the covering letter of the Appellant sent to the Additional Commissioner of Service Tax Cell, Pune-III on dated 21.08.2009 informing about such Service Tax payment alongwith interest and penalty and showing its intention to file an appeal before the Commissioner of Central Excise & Customs (Appeals), Pune and such payment m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the heading Current Assets and continue to pass on to the subsequent financial years till refund, as sought, in sanctioned and therefore, interference by this Tribunal in the order passed by the Commissioner (Appeals) is uncalled for. 5. I have gone through the case record and written notes alongwith connected documents filed by the parties. At the outset it is required to have a look at Section 35F of the Central Excise Act, as applicable then during the relevant period, with reference to Appellant's letter dated 21.08.2009. First paragraph of Section 35F reads: "Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be sufficient for the purpose of processing the refund and Appellant would not be subjected to the process of refund of duty as contemplated under Section 11B of the Central Excise Act, 1944. Again this being the position prevalling all throughout, the judgment of the Hon'ble Bombay High Court passed in Suvidhe Ltd. cited supra with a clear finding that the doctrine of unjust enrichment will not be applicable in respect of such deposit, would apply to the present scenario. 7. The argument led on behalf of the Respondent-Department that when the amount is shown in the books of account as expenditure, if would be presumed to have been passed indirectly to another person is without any basis, since no such accounting procedure has c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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