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2019 (3) TMI 816 - AT - Service TaxRefund of service tax paid - unjust enrichment - reliance on CA certificate - onus to prove that the burden of service tax has not been passed on to their customers either directly or indirectly - Held that:- If the refund is eligible on merits and is filed within the time limit, unless the unjust enrichment aspect has been provided by the claimant, the refund should be sanctioned and credited to the Consumer Welfare Fund. If the claimant proves that burden of the duty/service tax has not been passed on to their customers, the same needs to be refunded. The question is how to verify whether the claimant could have passed on the incidence of duty/service tax indirectly to their customers by adding the same as their cost of production of goods or cost of rendering the services. If so, whether the claimant can still get the refund of the duty/service tax. This issue has been settled by Hon’ble Apex Court in the case of Solar Pesticides Pvt.Ltd. [2000 (2) TMI 237 - SUPREME COURT OF INDIA] in which it has been categorically held that even if the appellant passes on the incidence of duty/service tax to their customers indirectly, the concept of unjust enrichment applies. In the present case, there is no dispute about the eligibility of the refund or the time limit. The lower authority rejected the refund claim on the ground of unjust enrichment which is, prima-facie, not in accordance with the law. If he had found that unjust enrichment applies, he should have sanctioned the refund and credited the same to the Consumer Welfare Fund. The first appellate authority, on the other hand, considered all the facts and came to the conclusion that the refund claim has been accounted for in the books of accounts of the appellant as service tax receivable. The contention of the department is the first appellate authority has wrongly came to this conclusion without himself verifying the books of accounts and merely relying on the Chartered Accountant certificate which is not a conclusive proof. This certificate by Chartered Accountant is comprehensive as to how he has arrived at the conclusion that the amount shown as service tax receivable in the books of accounts of the respondent as receivables included the disputed amount - There is no evidence, whatsoever, presented on behalf of the department to show that this certificate is incorrect or doubtful. The burden of service tax has not been passed on by the respondents to their customers and therefore the appeal needs to be rejected - appeal dismissed - decided against Revenue.
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