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TMI Blog2024 (6) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... llant in the books of accounts in favour of Unitech and Vatika, there is nothing on the record even in this appeal to substantiate that Unitech and Vatika had not collected service tax from the allottees to whom they had allotted the flats. This is what prevailed upon the Assistant/Deputy Commissioner to hold that refund should be credited in the Consumer Welfare Fund. Once such a finding was recorded by the Assistant Commissioner, it was incumbent upon the appellant to have at least filed sufficient evidence before the Commissioner (Appeals) to substantiate that these two builders had not recovered service tax from the allottees. There is no error in the Assistant Commissioner assuming, in the absence of any evidence led by the appellant, that the two builders had recovered service tax from the allottees of the flats and so they would be unjustly enriched even if the amount of service tax was paid by the appellant to the two builders after refund from the department. Thus, it is a clear case where the amount of service tax recovered by the appellant from Unitech and Vatika was not actually paid to Unitech and Vatika and only an assurance was given to them that the amount would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant on the value of steel and cement supplied to the appellant free of cost should not be appropriated against the service tax liability. The appellant filed a reply and denied the allegations but by an order dated March 23, 2009 the Commissioner of Central Excise confirmed the demand. 4. Feeling aggrieved, the appellant filed an appeal before the Tribunal and the Tribunal by order dated 23.07.2014 allowed the appeal. The order is reproduced below: The assessee is in appeal against the adjudication order dated 23.3.2009 passed by the Commissioner, Central Excise (Adjudication), New Delhi. This order confirmed the service tax demand of Rs.1,23,70,024/-, apart from interest liability while appropriating the assessed amount of service tax already deposited prior to the conclusion of the proceedings, on the ground that the appellant/assessee was disentitled to avail the benefits of exemption Notification Nos.15/2004-ST and 18/2005-ST dated 10.9.2004 and 7.6.2005, respectively since the assessee failed to disclose the value of goods supplied free of cost by the service recipient to the assessee for incorporation into works executed by the assessee for the benefit of the recipients ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cannot be treated as a refund application. The reasons stated are as follows: 1. Application as per section 11B of Central Excise Act, 1944 read with section 83 of Finance Act, 1994. 2. On Line Refund Request is not submitted. 3. Certified copy of the ST-2 Certificate. 4. ST-3 return for the relevant period with challan deposited. 5. Certificate from your Statutory Auditor certifying that the burden of Service Tax, which is claimed as refund, has not been passed on to any other person. 6. Certified copy of the Balance Sheet of the relevant period alongwith all the Schedules, clearly reflecting the claimed amount of ₹1,23,70,024/- as 'Service Tax Recoverable . 7. Other supporting documents to sustain your refund claim. 7. The appellant sent a reply dated 02.09.2014 to the aforesaid letter of the Superintendent and stated: Dear Sir, This has reference to your letter dated 25-08-2014 referred to above received on 28-08-2014. We are enclosing the desired information / documents are requested that the refund be issued at the earliest. 1. Application in Form-R Triplicate as per section 11B of Central Excise Act, 1944 read with section 83 of Finance Act 1944. 2. The refund app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly amount to unjust enrichment in terms of Section 11B of the Central Excise Act, 1944. (emphasis supplied) 9. Feeling aggrieved, the appellant filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) upheld the order passed by the Assistant Commissioner for the following reasons: 9. The appellants had received the said amount of service tax from their clients i.e. Unitech Vatika for the concerned period after raising invoices. Appellants contented that their clients had been given credit of the service tax paid and the amount would be transferred to their clients when they would get the refund from the department, and, therefore, there was no Unjust Enrichment. However, it can be seen that by collecting service tax from clients, the appellants get unjustly enriched if they receive the refund. 10. Further, the clients of Appellants are Real Estate developers who are engaged in sale of built up residential/ commercial units to its customers/consumers. There is no evidence to show that the clients had not passed on the burden of the service tax to their final consumers in any case. Appellants had provided services to these Real Estate developers who in turn recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Consumer Welfare Fund. Learned counsel pointed out that though the appellant may have initially collected the service tax from Unitech and Vatika, but after the order was passed by the Tribunal the appellant issued a Credit Note in favor of Unitech and Vatika. It is, therefore, the contention of the learned counsel for the appellant that the burden of service tax was borne by the appellant and in terms of the directions issued by the Tribunal, the appellant was entitled to refund since it would not be a case of unjust enrichment if the amount was refunded to the appellant. To support the contention that the issuance of Credit Note would mean that the appellant would not be unjustly enriched, learned counsel placed reliance upon the decision of the Supreme Court in Sunrays Engineers Pvt Ltd vs. Commissioner of Central Excise, Jaipur [2015 (318)E.L.T. 583 (S.C.] and the decision of the Karnataka High court in Commissioner of Service Tax, Bangalore vs. Shiva Analyticals (I) Ltd. Learned counsel also placed reliance upon a decision of a learned Member of the Tribunal in M/s Jalan Con Cast Ltd. vs. Commissioner of Central GST Central Excise, Varanasi, Allahabad [Excise Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was incumbent upon the appellant to have at least filed sufficient evidence before the Commissioner (Appeals) to substantiate that these two builders had not recovered service tax from the allottees. 16. There is no error in the Assistant Commissioner assuming, in the absence of any evidence led by the appellant, that the two builders had recovered service tax from the allottees of the flats and so they would be unjustly enriched even if the amount of service tax was paid by the appellant to the two builders after refund from the department. 17. Learned counsel for the appellant has placed reliance upon the decision of the Supreme Court in Sunrays Engineers Pvt Ltd. In paragraph 3 of the judgment, the Supreme Court noticed that before the Commissioner (Appeals) evidence was produced by the appellant to show that the burden was not passed as the credit of the excess amount was given to the two public sector undertakings. In the instant case, as noticed above, no evidence has been led by the appellant to substantiate that the amount was actually paid to Unitech and Vatika. Even according to the appellant, it had made entries in the books of account and the appellant would actually ..... X X X X Extracts X X X X X X X X Extracts X X X X
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