TMI Blog2013 (4) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... s certified that the amount has not been passed on by the appellant to their clients. See Crane Betel Nut Powder Works [2009 (6) TMI 530 - CESTAT, BANGALORE] & Mangal Textile Mills Pvt.Ltd. (2002 (2) TMI 133 - HIGH COURT OF GUJARAT AT AHMEDABAD) wherein held that certificate of Chartered Accountant produced by the appellant was not disputed by the Revenue authorities, by bringing on record any other opinion contrary to the Chartered Accountants certificate. In favour of assessee. - Appeal No.ST/59/2012 - Final Order No. A/10443/2013-WZB/AHD - Dated:- 19-3-2013 - Mr. M.V. Ravindaran , J. For the Appellant: Shri Kuntal Parikh, Adv. For the Respondent : Shri Manoj Kutty, A.R. JUDGEMENT Per: M.V. Ravindran: This a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt Rs.1,83,220/-). The appellant had not paid anything against penalty imposed under Section 76 of the Act. 4. The appellant being aggrieved with the said Order-in-Original No.SD-02/OIO-244/09-10, dt.31.03.2010/ 06.04.2010, preferred an appeal before Commissioner (Appeals), Ahmedabad, who vide Order-in-Appeal No.453/2010(STC)/MM/Commr.(A)/Ahd, dt.30.11.2010 allowed the appeal for the period upto 18.04.2006 by holding that there was no Service Tax liability on the appellant for the period between 01.10.2003 to 18.04.2006 and had restricted the Service Tax amount to be recovered from the appellant to the extent of Rs.9,164/- along with interest and penalty of Rs.9,164/- under Section 78 of the Act and had waived the penalties under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 (18) ELT 481 (Tri-Del) will also be applicable, as in that case also, it was held that the burden is on the Department to disprove the Chartered Accountant certificate. He submit that in the case of Saralee Household Bodycare India Pvt.Ltd. 2007 (215) ELT 685 (Mad.), Hon'ble High Court of Madras has held that principle of unjust enrichment is not applicable since duty has not been passed on to the customers. He would submit that the judgment of the Tribunal in the case of Crane Betel Nut Powder Works 2010 (251) ELT 118 (Tri-Bang), is directly on the point, wherein the Division Bench has held that the refund needs to be allowed. For the same proposition, he would rely on the following decisions also. a) Indus Tube Ltd 2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant for an amount of Rs.3,31,608/-, which is an amount paid in excess by the appellant on being pointed out by the Audit party. 10.The first appellate authority, in this case, has held against the appellant only on the ground that the appellant has booked the amount in their Profit Loss Account as expenses and such duty/Service Tax liability having paid subsequently, could not be collected by the appellant from their clients, but arguments have been discarded only on the ground that the appellant has not recorded the payments in balance sheet as receivables. I find that this finding of the first appellate authority is not in consonance with the law in as much as Hon'ble High Court of Punjab Haryana in the case of Modi Oil General M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve has been sought to be discarded by the first appellate authority summarily indicating that the said certificate does not disclose accounting practices whatsoever and that the said certificate is based on the accounts. In my considered view, these findings of the first appellate authority are far from reality, in as much as it can be seen from the Chartered Accountant s certificate that Chartered Accountant has categorically certified that he has verified the books of accounts like Cash/Bank Book and Ledger Accounts and on verification, he has certified that the amount has not been passed on by the appellant to their clients. In my view, the decision in the case of Crane Betel Nut Powder Works (supra) (wherein I was one of the Member), wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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