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TMI Blog2024 (8) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... premises. It is matter of record that for transmission of gas through pipe line during the period from October 2008 to July 2009m, the appellant have charged additional amount over and above the portion fixed by the regulatory authority and such additional charges were not approved by the Ministry of Petroleum and Natural Gas. As per the provisions of Section 67(1)(i) of the Finance Act, 1994, the service tax is payable on the gross amount charged by the service provider for rendering a particular service. Since gross amount charged by the appellant from the buyers of natural gas was less by the additional service charge recovered by them therefore, service tax paid on the additional service charges cannot be recovered as the service tax payable under Section 67 of the Finance Act, 1994. The appellant are rightly eligible for the refund of service tax paid by them on the additional charges recovered by them from their customers and same have been refunded by way of credit notes - the impugned order-in-appeal is without any merit - appeal allowed. - MR. SOMESH ARORA, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri JC Patel and Shri Rahul Gajera, Advocates for the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m and charge any additional service charge from its customers until the decision in this regard is taken by the Government of India. The appellant after getting the letter from the Ministry of Petroleum and Natural Gas issued credit notes to its customers for the additional charges recovered by them which also included the amount of service tax charged thereon. While issuing the credit notes, the appellant made it clear to their clients that they will not be entitled to take credit of service tax which has been paid on such additional service charges recovered by them and credited back to them. Since the additional service charges along with additional service tax was refunded by the appellant to its customers in the form of credit notes, the appellant has filed refund claim of service tax amounting to Rs. 88,47,107/- of the additional service tax paid by them to the department on the charges which were recovered in the form of addition service charge from its customers. 2.1 The learned advocate has contended that it was wrong on the part of the Adjudicating Authority to reject the refund claim only on the ground that reversing of additional service charge to its customers on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment of India under a contract. The appellant was required to transmit the gas through pipeline upto the buyer s premises. It is matter of record that for transmission of gas through pipe line during the period from October 2008 to July 2009m, the appellant have charged additional amount over and above the portion fixed by the regulatory authority and such additional charges were not approved by the Ministry of Petroleum and Natural Gas. Since the appellant was working under the assessment under APM and the additional charges recovered by them from buyers of the gas were not approved by the Ministry, the same were refunded by the appellant along with service tax and thus the additional service tax paid by them on the additional service charges became refundable to them. 5. As per the provisions of Section 67(1)(i) of the Finance Act, 1994, the service tax is payable on the gross amount charged by the service provider for rendering a particular service. Since gross amount charged by the appellant from the buyers of natural gas was less by the additional service charge recovered by them therefore, service tax paid on the additional service charges cannot be recovered as the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant and set aside the impugned order. The appellant is entitled to refund of the amount claimed. (b) This Tribunal, in the appellant s own case, matter reported under 2016 (46) STR 698 (Tri. Ahmd.) held as follows:- 5 . Heard both sides and perused the case records. The issue involved in this appeal is whether unjust enrichment will be applicable in the refund of Service Tax once collected by the appellant but subsequently returned to the customers by issue of credit notes. It is evident from the series of judgments relied upon by the appellant that unjust enrichment is not applicable to the Service Tax refunds when the amount has already been paid to the customers by issuing credit notes or is not paid at all by the customers. In the case of CST, Ahmedabad v. Poornima Advertising Promotion Pvt. Ltd. [2010 (20) S.T.R. 107 (Tri.-Ahmd.)], this Bench has laid down the following law in Para 4 on this issue :- 4. The next point that is required to be considered is whether the refund claim is to be rejected on the ground of unjust enrichment. We find that the reliance of the ld. Advocate on the decisions of this Tribunal in the cases of Adwise Advertising Pvt. Ltd. v. UOI - 2006 (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid down by the Supreme Court in Mafatlal Industries Ltd. (supra). The principle which has been enunciated in the judgment is as follows : (iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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