TMI Blog2012 (11) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents as service tax was not passed on to the buyers/customers - in favour of the assessee - 1134 OF 2011 - - - Dated:- 21-8-2012 - V.M. SAHAI AND N.V. ANJARIA, JJ. R.J. Oza for the Appellant. JUDGMENT V.M. Sahai, J. - M/s. Modest Infrastructure Limited, Bhavnagar, the respondent in this tax appeal, filed a claim of refund of service tax of Rs. 16,63,451/-deposited on 23.5.2007, in the prescribed Form- R, with the Assistant Commissioner, Service Tax Division, Bhavnagar (for short the Assistant Commissioner) on the ground that the respondent/job worker cannot be held to be taxable service provider covered under the definition of Business Auxiliary Service as their activity amounts to manufacture in view of Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en passed on to anyone. 5. The respondent contended that the activity carried out by the assessee/job worker amounted to manufacture within the meaning of Section 2(f) of the Act. The assessee/job worker had already realized the amount of service tax from M/s. Alcock @ 12.24% by raising Bill No. MIPL/AAGL/Y-251-02A dated 21.2.2007. The Commissioner (Appeals) further held that the assessee/job worker had passed on the duty burden to M/s. Alcock, therefore in terms of Section 11B(2) of the Act, the amount of refund be credited to consumer welfare fund. The Assistant Commissioner by his order dated 3.12.2008 accepted that the respondent is not covered under business auxiliary service as their activity amounted to manufacture and sanctioned t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot produced by the respondent along with application for refund under Section 11B of the Central Excise Act, 1944 ?" (B) Whether in the facts and circumstances of the case, the Tribunal committed error in law in holding that the respondent-assessee had never collected tax from Messrs. Alcock Ashdown (Gujarat) Limited." 10. Paragraphs 8 to 12 of the order of Commissioner (Appeals) dated 19.5.2009 is extracted below: "8. Subsequently, the appellants have issued Credit Note No.: MIL/Y-251/AAGL/01/2008-2009 dated 09.01.2009 for Rs. 16,63,451/- wherein the Service Tax wrongly collected vide Debit Note No.: MIPL/AAGL/Y-251-02A/2006 dated 21.02.2007 was credited into the books of account. 9. Further, on perusal of the Chartered Accountant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Apart from above, I also find that the contract entered between the appellants and M/s. Alcock Ashdown specifically stipulates that the price is inclusive of all the taxes, levies, etc. and; therefore even M/s. Alcock Ashdown Gujarat Limited will not give the said amount to the appellant at the end of the contract. Further, the rates were fixed and therefore any increase or decrease in the cost would have to be borne by the appellant and they cannot in any way pass on the said burden to its buyers. 11. The fact is further corroborated by the letter dated 14.06.2008 of M/s. Alcock Ashdown Gujarat Limited herein they have stated that they have not taken the credit of the said account as input credit. The Cenvat Credit Rules, 2004 clear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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