TMI Blog2009 (11) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... d that: - once the Chartered Accountant has given a Certificate certifying that the element of duty has not been passed on to the customers, then, the same is required to be accepted. - ST/1/2009 - 1392/2009 - Dated:- 6-11-2009 - Shri M.V. Ravindran, Member (J) REPRESENTED BY: S/Shri Ashok Desh Pandey and B. Panda, Advocates, for the Appellant. Shri Ravi Rajendran, JDR, for the Respondent. [Order]. - This appeal is directed against the Order-in-Appeal No. 241 /2008-ST., dated 10-10-2008, passed by the Commissioner of Central Excise (Appeals-II), Bangalore. 2. The relevant facts of the case for consideration are, the appellants herein are receiving the services of 'Goods Transport Agencies (GTA) for transporting the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of their refund claim. The adjudicating authority in Order-in-Original rejected part of the refund on the ground of 'unjust enrichment' and sanctioned part of the amount but credited the same to Consumer Welfare Fund as on a finding that the appellant had passed on the incidence of tax to their customers and it becomes a case of 'unjust enrichment'. Aggrieved by such an order, the appellants filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) has upheld the order-in-original with the following observations: "The original authority also has pointed out that the Service tax paid has been charged to their P L account as expenditure and would have claimed exemption under Income Tax to that effect, which clearly i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 622 (Tri.) = 2007 (211) E.L.T. 293 (Tri.)] (vi) Gopi Krishna Processors (P) Ltd. v. CCE [2007 (210) E.L.T. 529 (Tri.)] 5. The learned DR on the other hand, submits that it is not in dispute that an amount of Rs. 13,58,988/- has been debited through PLA account as "Service tax paid". He relied on the Hon'ble Apex Court judgment rendered in the case of Union of India v. Solar Pesticides Pvt. Ltd. [2000 (116) E.L.T. 401 (S.C.)] for the proposition that once the duty on raw material is added to the price of finished goods, then incidence of duty on the raw material would stand passed on to the ultimate customers. 6. I have carefully considered the submissions made by both sides and perused the records. On perusal of the records, I find t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customers. (iii) The Company has not collected any tax for availing the service under 'Transport of Goods by Road Service'." On perusal of the Balance Sheet, in the Schedule of Loans and Advances, I find that the entire Service tax refund amount was indicated under the category of 'Statutory Receivables'. It is the submission that once the amount is shown as 'Receivables' as a liability in the Balance Sheet, it would mean that the said amount has not been debited to the account. It is a common knowledge, that it is so. I find that the reliance to be placed on Chartered Accountant's certificate and in respect of 'unjust enrichment' have been now decided by this Bench in the case of RCC (Sales) Pvt. Ltd. v. CCE, Hyderabad -IV [2007 (8) S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e certifying that the element of duty has not been passed on to the customers, then, the same is required to be accepted. The Certificate has not been challenged by the Revenue. A similar finding was rendered by this Bench again in the case of Toyota Kirloskar Motor Ltd. v. CCE - 2005 (187) E.L.T. 499 (Tri-Bang.) wherein also, the aspect pertaining to the incidence of duty not having been passed on to the customer was accepted in the light of documents produced. In view of these judgments and the citations being relied before the Commissioner (Appeals), we are of the considered opinion that the appellants are entitled for the refund. The Commissioner (Appeals) was not justified in directing the refund amount to be credited to the Consumer W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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