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TMI Blog2008 (11) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... /364 of 2008 - Dated:- 11-11-2008 - M. VEERAIYAN, TECHNICAL MEMBER and P.K. DAS, JUDICIAL MEMBER Vinod Kumar for the Appellant. A. K. Madan for the Respondent. ORDER P.K. Das, Judicial Member. - The appellant filed this appeal against rejection of refund claim of Rs 45,33,068 under section 11B of the Central Excise Act, 1944 as applicable to service tax by virtue of Finance Act, 1994 on the ground of unjust enrichment. 2. The relevant facts of the case in brief are that the appellants were engaged in production of TV serial/programme for various TV channels. During the period 18-6-2003 to 31-3-2004 the appellant wrongly paid the service tax under the category of "Video Production Agency" service. Subsequently, they f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tomers. He also submits that the appellant failed to produce any evidence in the nature of books of account, balance sheet, etc. that the amount of tax was not recovered from the customer. He relied upon the decision of Hon'ble High Court and Tribunal: (1) JCT Ltd. v. CCE 2006 (202) ELT 773 (Punj. Har.). (2) Skycell Communications Ltd. v. Commissioner of Customs 2007 (216) ELT 702 (Trib.-Chennai). 5. After hearing both sides and on perusal of the records, we find that it is evident from the invoices that the appellant charged service tax separately. The contention of the appellant that the alleged invoices indicate the composite price and therefore the charging of service tax separately in the invoice bearing no consequenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to show that incidence of tax had not been passed to the customers. It is seen from the agreement that appellant will be responsible for payment of all tax and ensure applicable under existing law on all kinds paid to them. So, the submission of learned Advocate that the composite price was charged to the customer, which has no bearing in respect of payment of tax, is without any substance. 7. The learned Advocate relied upon various decisions of the Tribunal, which are not relevant in the facts and circumstances of the case. In the case of Hexacom (I) Ltd. v. CCE [2007] 9 STT 121 (Delhi-CESTAT). It is seen that the refund was claimed by the customers and in the present case, the refund was claimed by the service provider and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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