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2015 (8) TMI 68

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..... hoarding. Service recipient M/s. Reliance Industries Limited vide letter dated 06.10.2011 has also confirmed that they had neither paid tax on these services to the appellant nor taken any credit of the service tax paid by the appellant. Appellant has therefore, discharged its onus that excess service tax paid has not been recovered from the customers. There is no evidence on record produced by the Revenue showing any further verification on the part of the Revenue to the effect that the claim of the appellant of not passing on the service tax is not genuine and that the excess service tax paid is actually paid by the service recipient. - Decision in the case of CCE & ST vs. Modest Infrastructure Limited [2012 (11) TMI 924 - GUJARAT HIGH C .....

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..... to the service recipient but the same was not paid by the service recipient. That their case is identical to the case of CCE, Bhavnagar vs. Modest Infrastructure Limited [2011 (24) STR 369 (Tri. Ahmd.)] passed by the Bench, which was upheld by the Hon'ble Gujarat High Court in the case of CCE ST vs. Modest Infrastructure Limited [2013 (31) STR 650 (Guj.)]. He made the Bench go through the orders passed by CESTAT Ahmedabad and Hon'ble High Court to drive home the point that even if the service tax is mentioned in the invoices, unjust-enrichment is not applicable if the service tax mentioned in the invoices has not been received from the service recipient. 3. Shri T.K. Sikdar (AR) appearing on behalf of the Revenue argued that o .....

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..... . Modest Infrastructure Limited (supra), relied upon by the appellant, decided the issue in favour of the assessee as follows:- 2.?As per facts on record the respondent filed the claim of refund of service tax of ₹ 16,63,451/- with the Assistant Commissioner, Service Tax Division, Bhavnagar on the ground that they are job worker and therefore they cannot be held as service provider under business auxiliary services as their activity accounts to manufacture as per Section 2 of Central Excise Act, 1944 and therefore they sought the refund of ₹ 16,63,451/- being wrongly paid by them under business auxiliary services. 3. The lower authority while deciding the refund claim vide his Order- in-Original No. R/07/2008-2009 dated 3 .....

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..... note for the amount in question wrongly collected vide debit notes and credited the same into the books of account. He also perused the Chartered Accountant certificate and the various documents submitted to show that it was only an entry showing debit and credit and no service tax amount was actually received from their customers. He also took note of the fact that no credit of the service tax in question was filed by M/s. Alcock Ashdown (Gujarat). Accordingly he held that the refund is not hit by bar of unjust enrichment. 6. The Revenue in their memo of appeal have held that once the assessee had passed on duty burden at the time of clearance of the goods, subsequent issuance of credit notes to the buyers cannot come to their rescue. T .....

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..... In our opinion the Commissioner (Appeals) as well as the Tribunal were correct in taking the view that the refund was liable to be paid to the present respondents as service tax was not passed on to the buyers/customers and there was no unjust enrichment. Therefore, we do not find any illegality in the impugned orders. We are in agreement with the view taken by the Tribunal and Commissioner (Appeals) that there was no unjust enrichment and the respondent is entitled for refund. Both the questions formulated are concluded by finding of fact and the appeal is liable to be dismissed. Both questions are answered against the Revenue in favour of the assessee on the facts of this case. Accordingly this tax appeal is dismissed. 5. It is observ .....

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