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2015 (8) TMI 746 - CESTAT NEW DELHI

2015 (8) TMI 746 - CESTAT NEW DELHI - 2016 (41) S.T.R. 961 (Tri. - Del.) - Refund claim for tax deposited erroneously - unjust enrichment - Commercial Training & Coaching Services - Exemption under Notification No.25/12-ST dated 20.6.2012 - whether the refund claim is hit by the bar of unjust enrichment - Held that:- agreement stipulates the value inclusive of taxes. The invoices issued also indicate that amount collected is inclusive of service tax. Undeniably the presumption under section 12B .....

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-SM - FINAL ORDER NO. 52021/2015 - Dated:- 26-6-2015 - Sulekha Beevi CS, Member (J),J. For the Appellant : Shri Vimal Jain, Adv. For the Respondent : Shri R K Grover, AR ORDER Per Sulekha Beevi CS: Brief facts of the case are as below:- 1.1 The appellant, M/s.Mind Edutainment Pvt.Ltd. are engaged in providing educational services and holds Service Tax registration under the category of "Commercial Training & Coaching Services". The services provided by the appellant were exempt fro .....

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ly for the reason according to the appellant, that as regards this amount, the tax incidence had not been passed on to other. The appellant did not claim refund of ₹ 3,32,493/- as the invoices issued by the appellant charged service tax separately. These aspects were submitted in detail along with necessary documents before the authorities below. The original adjudicating authority as well as appellate authority rejected the refund claim on the ground that it is hit by unjust enrichment. A .....

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d refund claim only in respect of amount where no service tax has been charged separately from service recipient. The learned Counsel relied upon the judgements rendered in CCE, Chandigarh-II vs. J.R. Transformer Pvt.Ltd.-2014 (36) STR 1167 (Tri.-Del.) and CST, Delhi vs. A.P.Engineers-2014 (34) STR 795 (Tri.-Del.). It is further submitted that the appellant had produced certificate of Chartered Accountant and also the Balance Sheet for the relevant Financial Year 2012-13 to substantiate that the .....

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d in this appeal is whether the refund claim is hit by the bar of unjust enrichment. 5. At the outset, it has to be stated that the Commissioner (Appeals) has discussed in detail as to the issue of unjust enrichment and whether the fee mentioned in the agreement is inclusive of tax. The relevant portion of para 9 of the Order-in-Appeal dated 31.12.2014 is reproduced below:- 9. In view of the aforesaid discussions, I am of the considered opinion that the appellant has passed on the burden of Serv .....

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ion 12B. Accordingly, the Order-in-Original stand modified to the extent that the amount of the refund claimed is transferred to Consumer Welfare Fund." 6. The doctrine of unjust enrichment is a just and salutary doctrine. It prevents collection of duty from both the ends. The doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Before claiming a relief, the applicant has to establish that he has borne the amount for which relief is sought and that he has .....

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duty paid thereon. - Notwithstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. Section 12B. Presumption that the incidence of duty has been passed on to the .....

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s were collected on two basis. The first category of cases where the tax incidence has been passed on i.e. service tax has been charged separately and recovered from the schools/parents being a sum of ₹ 3,32,493/- i.e. (Rs.16,07,399/- less ₹ 12,74,906/-). Copy of sample invoices where service tax is charged separately is produced. Second category of cases where the incidence has not been passed on i.e. service tax is inclusive in the fees charged and borne by the company itself. Copy .....

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ed certain invoices wherein no service tax has been charged separately. The Company has deposited service tax on such invoices on its own by making backwards calculation of service tax. Since the services are exempt under the Mega Exemption Notification, the appellant claimed refund of such service tax paid. 10. I have carefully considered the rival submissions and also perused the records. In the first category of cases where the appellant admits that the incidence of tax has been passed on, th .....

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#39; of the agreement entered between the appellant and Primus Public School dated April 20,2012, gives the recitals about the fees. Total annual fee to integrate One Fixed THOTS Lab for 5 days in a week = ₹ 6.666 lacs inclusive of taxes. Total agreement value is ₹ 20 lakhs. Out of this ₹ 3 lakhs inclusive of taxes is to be paid on execution of agreement. Balance amount is divided into 12 installments of ₹ 1,41,666/- The relevant portion of invoice issued for this agreeme .....

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f the appellant that the incidence of tax has not been passed on to other is untenable. 13. The appellant further relies on the Chartered Accountant's Certificate and the balance sheet to substantiate that the tax burden has been borne by them. When the invoices raised are such that the incidence of tax has been passed on, the presumption envisaged under section 12B comes into application. These documents are not sufficient to rebut the statutory presumption. 14. The appellant relied upon th .....

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ssessee had erroneously remitted service tax despite the service being exempted. One of the grounds for rejection of refund claim was that the work orders between the assessee and PSEB revealed that rates specified for remunerating the assessee for services rendered included service tax and therefore the service tax component stood included in the consideration received by it. The said decision is not applicable to the case in hand because besides the recital in the agreement as inclusive of tax .....

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he same has not been charged separately by the service provider. The appellant herein has issued invoices on cum value basis, and has not produced any evidence to prove that they have refunded the service tax to their customers. 15. The Tribunal, in the case of Concrete Movers Vs. Commissioner of Service Tax, Mumbai-2015 (38) STR 86 (Tri.-Mum.) held that when rate quoted and amount collected are inclusive of taxes, the doctrine of unjust enrichment would be applicable. In para 7 of the said judg .....

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