Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2019 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (8) TMI 968 - CESTAT AHMEDABADScope of SCN - Refund of service tax - unjust enrichment - HELD THAT:- The SCN that refers to refund application filed by the appellant has raised objection only with regard to aspect of unjust enrichment. Whereas, the Adjudicating Authority as well as the Ld. Commissioner (Appeals) had gone into the aspect of nature of services, whether the services fall under works contract service or otherwise. Such an important issue cannot be dealt without making any allegations in the show cause notice. Both the authorities have travelled beyond the scope of show cause notice which is legally not permissible for the authority to deal with at such stage of adjudication as well by Commissioner (Appeals) as this is a settled law in various judgements - reference can be made to the case of PRINCE KHADI WOOLLEN HANDLOOM PROD. COOP. INDL. SOCIETY VERSUS CCE. [1996 (11) TMI 72 - SC ORDER] - thus, both the authorities who have decided the issue that the services provided by the appellant is not of works contract and consequently rejected the refund claim, is absolutely illegal and incorrect. Whether there is unjust enrichment or otherwise? - HELD THAT:- The appellant has not passed the incidence of refund amount of ₹ 14 lakhs to any other person. Against this finding no challenge was made by the department. Therefore, this issue on unjust enrichment attained finality in favour of the appellant - It is also observed that appellant have issued credit note to M/s Malani Construction for an amount of ₹ 14 lakhs towards Service Tax which was initially charged in the bill. There is absolutely no doubt that the appellant have not passed on the incidence of Service Tax paid by them to any other person. Therefore, not only on the basis of evidence but as per clear concluding finding given by the Commissioner (Appeal) in his order in para 10, the issue of unjust enrichment does not exist. Appeal allowed - decided in favor of appellant.
|