TMI Blog2012 (11) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... fund of service tax paid - neither tax has been passed on as tax nor the amount has been shown in return as paid towards tax. What has happened is only remittance of a higher amount to the bank for credit to service tax account - unjust enrichment is not involved in this case and the amount is to be refunded to the appellant. - refund allowed - decided in favor of assessee. - ST/1624/2011-SM(BR) - 124/2012-SM(BR)(PB) - Dated:- 2-2-2012 - Shri Mathew John, J. REPRESENTED BY : Shri Sunil Bahl, C.A., for the Appellant. Smt. R. Jagdev, AR, for the Respondent. [Order]. - In this case, the appellant provided the service of Management Consultancy Service to M/s. Usha International Ltd. and during the year 2008-09, he received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd is given, there will be unjust enrichment. (iii) Revenue also point out that the amount involved has been shown as expenditure in his profit and loss account and this fact supports the Revenue s argument that the incidence was passed on. 2. The appellant submits that the relevant contract had a clear condition that service tax if any, has to be borne by the appellant and therefore, there was no question of passing of the incidence of service tax. The appellants have also produced a certificate from M/s. Usha International Ltd. stating that they had not reimbursed any amount towards service tax and therefore, there is no question of unjust enrichment involved in this case. 3. The Counsel for the appellant further submits that at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, there is clearly unjust enrichment. 6. The counsel for the appellant points out the decision in Cimmco Ltd. v. C.C.E. reported in 1999 (107) E.L.T. 246 (CEGAT) holding that where contract rates are inclusive of duties and tax, the interpretation should be that tax that was due was paid. Even zero liability can be considered as tax due. Such contracts do not by itself prove that incidence has been passed on. 7. I have considered arguments of both sides. I note that the disputed amount has not been realized as service tax from the person to whom service is provided. It is also to be noted that appellant had not filed a service tax return and the amount deposited in the tax account of the Government becomes payment towards servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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