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2019 (11) TMI 566 - AT - Service TaxRefund of service tax - unjust enrichment - section 11B of CEA - SCN was issued detailing unjust enrichment provisions in Section 11B as well as on the ground that sub-contractors are liable to pay service tax as well as main contractor - HELD THAT:- The Commissioner (Appeals) should have decided the matter only on the aspect of unjust enrichment as all other issues were either not raised at the first stage of SCN or settled in favour of the appellant. Though the appellant claimed that they have submitted various records however there is no particular records which show that incidence of service tax initially borne by the appellant was not passed on any other person. The fact remains that the sub contractor has charged the service tax and the same was reimbursed by the appellant to the sub contractor. The provision of the service tax was clearly made as expenditure in the books of the appellant - Even though I agree that merely because the service tax amount was shown as expenses that alone cannot establish that the incidence was passed on. However once the service tax amount is booked as expenditure then the burden to prove that the same was not passed on become heavy on the assessee. Though the service tax paid by the sub contactor though initially borne by the appellant and reimbursed the same to the sub contractor the treatment of the service charge as well as the service tax is same and the total value of service including service tax stand merged with the overall contract value of the appellant which was charged to their client. Therefore, in absence of any direct evidence it was not established that the incidence of service tax for which the refund was sought for has not been passed on to any other person - the refund is clearly hit by unjust enrichment. Appeal dismissed - decided against appellant.
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