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2022 (2) TMI 1074 - AT - Service TaxRefund of duty paid - applicability of principles of unjust enrichment - reverse charge mechanism - HELD THAT:- The impugned service tax liability got leviable upon the appellant in the year 2017, that too, under reverse charge mechanism. The said liability is against the amount of license fee being deposited by the appellant with the State Government of Rajasthan for getting a liquor license in favour of the appellant. The impugned refund would not have ever been applied had there not been an amendment in Finance Act, 2019, that too with the retrospective effect. The said amendment since came two years later, also the duty was not paid at the appropriate time but payments was made later after it was pointed by the audit team, that too, under reverse charge mechanism. Hence, from no stretch of imagination, it can be presumed that the burden of said payment would have been passed on to the customers. Department has not produced any positive evidence to prove the same. Otherwise also the only reason for such presumption is that the aforesaid amount has been shown as an expense in profit and loss account by the appellant - since the payment was made under RCM there appears no error on part of appellant when the said payment is shown as expense in the profit and loss account. Commissioner (A) has failed to appreciate the Chartered Accountants Certificate dated 17.11.2019 as was issued by the statutory auditors of the appellant alongwith the relevant pages of the balance-sheet for the year 2016-17 and 2017-18. The said documents were appreciated by original adjudicating authority to have been shown the pre-paid expenses of ₹ 1,29,17,302/- under the note No.20 of the audited balance sheet 2016.17 . The document were also observed to have provided the bifurcation for an amount of ₹ 15,65,000/- as bar license fees pre-payment “and ₹ 39,74,331/- as rates and taxes for the year 2017-18” including therein ₹ 1565000/-as liquor license fee in the balance sheet of 2017-18. These documents were held sufficient by the original adjudicating authority to prove that the appellant had not passed the burden of refund claim amount to the others. Hence, the claim was denied to be hit by clause of unjust enrichment. Commissioner (Appeals) has committed an error by holding the refund to hit by unjust enrichment merely on presumptive basis. No relevant evidence at all been discussed by him while coming to the said conclusion. Rather, the relevant evidence as was considered by Original adjudicating authority has miserably been ignored by the Appellate Authority - the question of adjudication as framed stands decided in favour of the appellant - appeal allowed.
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