TMI Blog2007 (2) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... hey produced the Chartered Accountant's certificate also. The issue is quite simple. As the appellants have returned the amount collected by way of service tax to their clients, it is evident that they only had borne the burden of service tax. When they applied for the refund of the amount to the department, they are rightly entitled for the same. But in the impugned order, the Commissioner has relied on the decision of the Tribunal rendered in the case of S. Kumar's [ 2003 (2) TMI 85 - CEGAT, NEW DELHI] to deny the refund. As rightly pointed out by the learned Advocate in matters of service tax it is very easy to identify the service provider and the client and also to decide as to who has borne the tax incidence. Issue of cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viewed the Asst. Commissioner's order under Section 84 of the Finance Act, 1944 on the ground that the Asst. Commissioner has erred in holding that the bar of unjust enrichment was not applicable, as the customers taking back by way of credit notes does not alter the scope of unjust enrichment. Consequently the Commissioner of Service Tax held that the refund sanctioned by the lower authority in his order dated 9.1.2004 is erroneous. The appellants are aggrieved over the impugned order, hence, they have come before the Tribunal for relief. 3. Shri Ramesh Ananthan, the learned advocate appeared on behalf of the appellants and urged the following points. (i) It is very clear that there is only one person who is involved in accepting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the same has to be set aside. (vi) In the present case the appellants produced Chartered Accountant wherein it was detailed that the Service Tax collected from different customers were refunded to them partly by issuance of credit notes and also by issuing cheques. (vii) In the course of personal hearing the learned advocate brought to our notice the decision of the Apex Court in the case of Mohd. Ekram Khan and Sons v. Commissioner of Trade Tax, UP reported in 2004-(006)-SCC-1083-SC wherein it is held that payments received through credit notes amounted to sale. In view of the above decision of the Apex Court, he contended that the decision of the Larger Bench in S. Kumar's Ltd. may not be good law. He pointed out that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quite simple. As the appellants have retuned the amount collected by way of Service Tax to their clients, it is evident that they only had borne the burden of Service Tax. When they applied for the refund of the amount to the Department, they are rightly entitled for the same. But in the impugned order, the Commissioner has relied on the decision of the Tribunal rendered in the case of S. Kumar's case to deny the refund. As rightly pointed out by the learned advocate in matters of Service Tax it is very easy to identify the service provider and the client and also to decide as to who has borne the tax incidence. Issue of credit note to the clients is also a form of payment, as held by the Apex Court in the case of Mohd. Ekram Khan and S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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