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2013 (12) TMI 798 - CESTAT BANGALOREDenial of refund claim - Refund of excess tax paid - Held that:- ledgers which are the subject matters and which are the cause for excess payment had not been produced before the Commissioner and he has seen these ledgers and he has satisfied himself after going through the ledgers that excess payment has been made and that as submitted the entire amount of commission received was received as cum-tax receipt and tax was paid by the Bank and therefore the question of excess recovery may not arise. According to Deputy Commissioner, the appellant has been able to show effectively that the excess service tax has been paid and the same has not been collected and after going through the general ledger account and other relevant documents, ST-3 returns and TR6 challans, he has recorded a finding that there was no unjust enrichment. He has also recorded that excess payments were reflected as receipts in the general ledger account and there was no corresponding debit entries in the name of any of their customers. Therefore, the incidence of tax was not passed on to any other person. Procedure adopted by the original adjudicating authority while adjudicating the second show-cause notice cannot be found fault with, even though it may not be appropriate to take it as a basis for coming to the conclusion in favour of the appellant but it can definitely be taken note of. Since the departmental officer has verified records and has come to the conclusion and I am also satisfied that this kind of a situation cannot lead to unjust enrichment, I consider that the appeal can be allowed - Decided in favour of assessee.
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