TMI Blog2015 (1) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein it has been held that the appellant is liable to pay service tax under the category of 'Business Auxiliary Service'. Since, the refund claim was lodged pursuant to the favorable Appellate order dated 20.03.2009, which was sanctioned by the original authority upon objective analysis of the facts vis-a-vis the statutory provisions, it is not proper and appropriate on the part of the revisionary authority to deny the benefit of refund on the ground that the service tax incidence has been passed on to any other person. It is observed from the impugned order that no findings have been recorded with regard to the claim of appellant that no service tax has been collected from the clients. - amount paid subsequent to the date of adjudicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.K. MOHANTY This appeal is directed against the Revision Order No.: 08/2010-Hyd-III Adjn.(ST) dated 27.10.2010 passed by the Commissioner of Customs, Central Excise Service Tax, Hyderabad-III, Wherein the Adjudication Order dated 10.08.2009 passed by the Deputy Commissioner was reviewed, resulting in restoration of already sanctioned refund in favour of the revenue. 2. The brief facts of the case, leading to this appeal are as follows :- During the period 2003-04 to 2005-06, the appellant had provided Ladle Management Service to its customer M/s Visakhapatnam Steel Plant. The Service Tax department entertained the belief that such service falls under the taxable category of 'Business Auxiliary Service'. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent aspect i.e. whether the service tax incidence has been borne by the appellant or passed on to the customers or third party. The show cause notice issued in this regard was adjudicated by the Commissioner vide the impugned order dated 27.10.2010, in restoring the sanctioned refund in favour of the revenue. The impugned order is the subject matter of this present appeal. 3. In the appeal memorandum, the appellant, inter alia stated that it had not collected any amount, representing service tax, for the reason that the activities undertaken at client's premises were not falling under the purview of 'Business Auxiliary Service'; that the adjudged service tax amount was paid during the pendency of appeal before the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, restoring the sanctioned refund in the impugned order is in conformity with the principles of unjust enrichment. 6. Heard the learned counsel for both sides and perused the records. It is an admitted fact that the appellant did not pay the tax owing to the fact that the activities undertaken in its client's premises was not confirming to any of the defined taxable services. Further, the appellant had specifically pleaded before the Revisionary authority that no service tax has been collected from its clients. Non-passing of the tax incidence to its client is evident from the fact that the adjudged amount was paid by the appellant on 28.01.2009, pursuant to the adjudication order dated 24.12.2008, wherein it has been held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions contained in Section 11B of the Central Excise Act, 1944 shall have the application. As per the terms of sub-section (2) of Section 11B of the later act, sanction of refund to the applicant or crediting the refund amount to the Consumer Welfare Fund is the prerogative of the Assistant/Deputy Commissioner of Central Excise. In the present case, upon satisfying himself that the amount paid by the appellant is refundable, the Deputy Commissioner (empowered authority) has passed the order, sanctioning the refund in favour of the appellant. Thus, the refund amount cannot be taken back by invoking the provisions of Section 84 of the Finance Act, 1994, by the authority who is not competent to do so under the Central Excise statute. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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