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2015 (8) TMI 68 - CESTAT AHMEDABAD

2015 (8) TMI 68 - CESTAT AHMEDABAD - TMI - Denial of refund claim - Unjust enrichment - Renting of immovable property and sale of space for advertisement - Held that:- Jurisdictional High Court that the facts were identical to the facts of the present case where service tax element was shown in the invoices but the same was not paid by the service recipient. In the present case, Chartered Accountant’s certificate dated 05.3.2014 certifies that service recipient M/s. Reliance Industries Limited h .....

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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 COURT] followed - Decided in favour of assessee. - Appeal No. : ST/12438 .....

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.02.2009. 2. Shri Jigar Shah (Advocate) appearing on behalf of the appellant argued that appellant paid service tax on services of renting of immovable property and sale of space for advertisement provided to M/s. Reliance Industries Limited (service recipient). That service tax on the said services was not leviable as service recipient did not pay any service tax to the appellant. That Reliance Industries Limited has given a certificate dated 06.10.2011 that they have not paid any service tax t .....

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e 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 se .....

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records. Appellant filed a refund claim or ₹ 6,27,113/- on 23.02.2009 for the period October 2007 to March 2008. The said refund claim was rejected by Assistant Commissioner, Service Tax, Surat vide order dated 09.9.2010 under Section 11B and 11D of the Central Excise Act, 1944. It has been recorded by the first appellate authority in Para 5(v) and (vi) of OIA dated 25.3.2014 that appellant produced a certificate dated 06.10.2011 issued by M/s. Reliance Industries Limited certifying that s .....

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ty of service tax to the service recipient and, therefore, unjust-enrichment will be applicable. In this regard, this Bench in the case of CCE, Bhavnagar vs. 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 the .....

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ts to manufacturing and sanctioned the refund and transferred the same to consumer welfare fund on the ground that the respondents have realized the payment of their invoice dated 21-2-2007 under which they have shown service tax of ₹ 16,63,451/-. Since the respondents have realized the same from their principles the duty burden has been passed on and therefore the refund was hit by the bar of unjust enrichment. 4. Being aggrieved with the said order an appeal was filed before Commissioner .....

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Ebara Pumps Ltd. - 2007 (5) S.T.R. 280 & M.A. Financial Services - 2006 (2) S.T.R. 350. 5. The appellate authority considered the various clauses of the contract entered into between the respondent and M/s. Alcock Ashdown (Gujarat) wherein the price was to be inclusive of all taxes, levies, duties etc. He also took note of the fact that the M/s. Alcock Ashdown (Gujarat) have issued credit note for the amount in question wrongly collected vide debit notes and credited the same into the books .....

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ad 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. They have also submitted that the onus to show that the duty in question has not been collected from the customers is upon the assessee. 7. While there can be no dispute about the above two legal issues, but in the present case we note that the total consideration contracted between the respondent and their buyer was inclusive of all the taxes. As such th .....

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issioner (Appeals). Accordingly the appeal filed by the Revenue is rejected. 4.1 The above order passed by CESTAT Ahmedabad was taken to the High Court by the department and Hon'ble Gujarat High Court vide order dated 21.08.2012, reported as CCE & ST vs. Modest Infrastructure Limited [2013 (31) STR 650 (Guj.)], upheld the order passed by CESTAT Ahmedabad by making following observations in Para 11:- 11.?Once the M/s. Alcock Ashdown (Gujarat) themselves issued certificate that the amount .....

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