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2016 (5) TMI 132 - AT - Service TaxRejection of refund claim - Amount paid prior to show cause notice - Maintenance and Repair service and other service - Refund claim rejected on the ground that appellants have not proved that the burden of duty has not been passed on to other person and Commissioner (Appeals) ordered the amount to be credited to be Consumer Welfare fund - Held that:- because the appellants showed the amount of ₹ 89,1507- as expenditure in the books of account, they have passed on the burden to their customers and therefore, the refund claim is hit by unjust enrichment. Though the appellants produced the Certificate of Chartered Accountant, it is seen that Commissioner (Appeals) has not considered the Certificate of Chartered Accountant furnished by the appellant, which states that the incidence of tax has not been passed on to other. It is for the department to show by adducing some material that the incidence of tax has been passed on. As during the relevant period, the said services were not taxable, the issue held in the appellant's favour. Merely because the amount was shown as expenditure it cannot be concluded that the burden of tax has been passed on to other indirectly. The burden rests upon the department to prove that this amount had been recovered by appellant from buyer as increased price.Therefore, by following the ratio of various judgments the claim of refund is not hit by the bar of unjust enrichment and the order directing to credit the sanctioned refund to Consumer Welfare Fund is therefore not sustainable. - Decided in favour of appellant with consequential relief
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