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TMI Blog2024 (1) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged in providing service under the category of 'Construction of residential Complex Services' and 'Commercial or Industrial Construction Services'. Proceedings were initiated against the applicant by way of issuance of show cause notice dated 16/07/2013, demanding Service Tax amounting to Rs.13,68,35.539/- and Rs. 1,93,11,635/- respectively under Section 73(l) of the Finance Act 1994 along with interest u/s 75 and Penalty under section 76, 77 and 78 of the said Act. Vide Order-in-Original No.27-28/Commissioner/STIGZB/2013-14 dated 17/4/2014 passed by the Commissioner, Customs, Central Excise & Service Tax Ghaziabad, demands of Rs.3,37,11,817/-, Rs.9,86,831/- and Rs.2,53,269/- were confirmed against the applicant under Section 73 (l) of the said Act along-with interest under section 75 and various penalties U/S 76, 77 and 78 of the said Act were also imposed. Rs.96,92,428/- already deposited by the respondent during the time of investigation was appropriated against such confirmed demand and interest by the adjudicating authority. 2.3 Being aggrieved with the aforesaid Order-in-Original, the respondent preferred Appeal No.ST/53899/2014-CU[DB] before this Tribunal. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Santosh Kumar learned Authorised Representative appearing for the revenue and Shri Rakshit Verma learned Counsel appearing for the respondent. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 Commissioner (Appeals) in his order has observed as follows:- "5. I have carefully gone through the facts and records of the case as well as the submissions made by the appellant and the respondent department. I find that there is no dispute that the amount was paid during investigation and Hon'ble CESTAT, Allahabad vide Final Order No. ST/A/70404/2017-CU(DB) dated 24.04.2017 had set aside the demand confirmed against the appellant and the appeal of the respondent department against the said order of Hon'ble CESTAT was dismissed by Hon'ble Apex Court vide order dated 28.03.2018 As the demand was set aside, the appellant became entitled to the amounts deposited by him during investigations, along with the applicable interest, as per law. The amounts so deposited by the appellant were not towards any tax liability but were merely a deposit with the department. Hon'ble High Court of Allahabad, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount received by Revenue, as deposit or pre-deposit i.e. unauthorizedly or under mistaken notion, etc., cannot be retained by Revenue since it has no authority in law to retain such amount and it must be refunded with interest" 5.2 In the present case there was no dispute that the amounts were deposited, during investigations, on the insistence of department, and therefore, as held by the Hon'ble High Court, the same was in the nature of deposit under protest and accordingly principle of unjust enrichment was not attracted. 5.3 I further find that the only reason given by the adjudicating authority for not crediting and paying the said amount to the appellant was that the impugned amounts were booked as expenditure by the appellant in his Profit and Loss Account. In this regard, I find that Hon'ble CESTAT, Hyderabad, in the case of Lakshmi Gayatri Iron & Steel Private Limited Versus CCE, Hyderabad-III [as reported in 2017 (358) ELT 462 (Tribunal-Hyderabad)], in a similar matter has held as under. - "Refund-Unjust enrichment - Deposit made during investigation-Contention that amount deposited shown in assessee's books of account as expenditure and not as rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provider of the service, hence, could not have been based on to the service recipients. The expenses incurred subsequently in form of deposit made during the course of investigation are shown as revenue expenditure in the balance sheet of the respondent, as this amount has been shown as revenue expenditure in the balance sheet the same would justify the claim of the respondent. In case of Jageti & Co. [2012 (26) S.T.R. 415 (Tri. - Ahmd.)] tribunal has held as follows: "Proceedings were initiated against the appellant on the ground that the appellant had exceeded the limit provided for eligibility of exemption from Service Tax as a small service provider. Proceedings were dropped by Order-in-Original No. SD-02/O-I-O, No. 42/08-09, dated 1-7-2008. As soon as the appellants were informed that they were not eligible for the benefit of small scale exemption available for service provider, they had paid the tax on 2-9-2006 with interest before issue of Show Cause Notice under protest. After the Order-in-Original was issued dropping the proceedings, the appellants filed refund claim claiming refund of Service Tax paid by them and interest thereon, which has been rejected. Hence, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiation of proceedings, Revenue had accepted their contention that they are eligible for exemption and not liable to Service Tax, how the original adjudicating authority can come to the conclusion that since the invoice had shown only gross amount. Service Tax has been collected, is surprising and cannot be comprehended. How can the original adjudicating authority say that the invoice did not indicate that Service Tax which was exempt at the relevant time? Just because the appellant did not indicate that the Service Tax was exempt, conclusion cannot be reached that they have collected the Service Tax from the customers. 8. Under these circumstances, I am unable to sustain the view taken by the authorities that on the basis of invoice, it can be concluded that the appellant had collected Service Tax. Only when Service Tax was payable and was held to be payable, the question of determination of gross amount included Service Tax or not, would arise. As regards Profit & Loss Account, if the appellant followed the cash accounting method, they cannot be found fault with for showing it as expenditure. In any case, it has been paid under protest and the expenditure is booked. This d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expenses and hence, the presumption was that the same has been passed on to the buyer in the form of incurred/enhanced costing for current and further supplies of the party's products. 12. Being aggrieved by this order, the party filed an appeal before the Commissioner(Appeals), who vide his order dated 30.09.2005, rejected the appeal on the ground that there was indirect unjust enrichment, since the amount was shown in the profit and loss account as revenue expenditure, the same had been passed on to the buyer in the form of incurred/enhanced costing for current and further supplies of the party's product. 13. Being aggrieved by this order passed by the Commissioner, the party filed an appeal before the CESTAT. 14. There was a difference of opinion between the two members. The first Member held that the matter was hit by unjust enrichment whereas the second Member came to the conclusion that it was not the case of unjust enrichment under the provisions of Section 11B of the Act, as the refund of claim can only be denied when the incidence of the duty whose refund has been claimed has been passed on as increased cost resulting in an increased sale price of goods t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on payment of duty has to indicate on documents of assessment, sale invoices and other like documents the amount of excise duty which will form party of the price at which such goods are sold. It is his contention that the provision will not be attracted in the present case as the goods have already been cleared and the duty had been paid subsequently. He also argued that under Section 12B of the Act any person who paid the duty on goods shall be deemed to have passed on the incidence of duty unless contrary is proved by that person. In this case duty involved in refund was not paid at the time of clearance of goods, but subsequently during the course of investigation for the past period and therefore, it was his contention that the incidence has not been passed on by them to any other person. 21. The third Member has also taken note of this in his judgment and has noted that a sum of Rs.8,40,120/- had been adjusted by the department from the amount of Rs.18,75,000/-. This amount had been paid by way of debit entries RG23A and therefore, he has come to the conclusion that if the amount of Rs.8,40,120/- was adjusted without invoking the bar of unjust enrichment to the said amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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