9911796707
TMI Blog2015 (9) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 4,20,49,912/- on the ground that the said amount has been paid by them as service tax under mistake of law. It is the case of the appellant that they are engaged in extraction of iron ores and during the period June, 2005 to May 2007, wrongly paid the service tax under the category of 'Business Auxiliary Service' and it was also contended that the said service tax liability was discharged under pressure from the Revenue authorities. On receipt of such refund claim, lower authorities issued a show cause notice requiring the appellant to show cause as to why this refund claim be not rejected. 2.1 Appellant contended show cause notice before that adjudicating authority on merits. The adjudicating authority rejected the contentions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh it is shown, as expenses in PL account, the same is not recovered from their customers and question of unjust enrichment will not arise. He would draw our attention to the certificate issued by the Chartered Accountant and submit that the said certificate clearly indicates that the amount paid by the appellant as service tax was not collected from their customers; that Chartered Accountant's certificate has been issued after going through the entire account of the appellant. He would submit that for this proposition, he relies upon the judgment of the Tribunal in the case of Commissioner of Central Excise & Customs, Guntur vs. Crane Betel Nut Powder Works 2011 (274) ELT 113 (Tri-Bang). It is his submission that the ratio of this jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and perused the records. On perusal of the records, it transpires that the issue relates to the refund of service tax paid by the appellant during the period June 2005 to March 2007 under the category of 'Business Auxiliary Services'. 6. It is undisputed that the appellant is engaged in the extraction of iron ore and that the said category is a service covered under 'Mining of Mineral services' and is taxable from 01/06/2007. It is also undisputed that for the period in question, the appellant have discharged the service tax under 'Business Auxiliary Services'. On merits, the first appellate authority has held that for the period in question in this appeal, service tax liability does not arise under the category of 'Business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the service tax liability has been discharged based upon working back from the amount which has been recovered from their customers, question of unjust enrichment arises and the appellant is not able to dislodge the presumptions and that they have recovered the amount of service tax from their customers. On this factual matrix, the appeal fails on the ground of unjust enrichment. In view of this, all the case laws which has been relied upon by the learned counsel may not carry the case any further as the facts involved in this case are totally different than the factual matrix in other case as recorded by us herein above. 9. In view of the foregoing, we hold that the first appellate authority's order is correct and legal and does ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
