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2015 (9) TMI 993 - CESTAT MUMBAI

2015 (9) TMI 993 - CESTAT MUMBAI - 2016 (45) S.T.R. 437 (Tri. - Mumbai) - Refund of service tax - Business Auxiliary Services - Unjust enrichment - Held that:- Appellant has not charged any service tax separately but when the revenue authorities directed them to pay service tax under the category of ‘Business Auxiliary Service', it is seen that the appellant had discharged service tax liability considering the amount recovered from their customers as cum-tax amount and worked out the service tax .....

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1/2015-WZB/STB - Dated:- 29-7-2015 - M V Ravichandran, Member (J) And C J Mathew, Member (T), JJ. For the Appellant : Shri T C Nair, Adv For the Respondent : Shri K S Mishra, Additional Commissioner (AR) ORDER Per: M V Ravindran: This appeal is directed against Order-in-Appeal No. CEX/GOA/VSK/08/2010 dated 22/01/2010 passed by the Commissioner of Central Excise & Customs (Appeals), Goa. 2. The relevant facts that arose for consideration are that the appellant here filed an application for re .....

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, 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 of the appellant and held that the refund claim as filed by the appellant is liable to be rejected on the ground that the said claim being filed beyond the period of limitation in respect of few claims and the claim is hit by unju .....

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both the lower authorities. It is his submission that service tax liability is not payable under Business Auxiliary Services' prior to 01/06/2007, as recorded by the first appellate authority and Revenue is not in appeal against such an order. It is his submission that when the authorities are accepting that the tax is not payable, then such amount should be refunded to the appellant as it has been withheld by the department without authority of law. It is his submission that for this propos .....

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t 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 .....

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ervice tax. It is his submission that both the lower authorities have presumed that the appellant has collected the service tax amount from their customers. 4. Learned Departmental Representative reiterated the findings of the first appellate authority and submits that the appellant has not been able to demonstrate that they have not recovered the amount of service tax from their customers. It is submitted that, for the period 01/06/2007 onwards there is no dispute but the dispute is for the per .....

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ade by both the sides 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 .....

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authority on the ground of unjust enrichment. We find from the records that the appellant had raised the bill on their customers which indicated that the same is for extraction of iron ore for the period in question. The said bill does not indicate any tax liability charged by the appellant. We reproduce below one specimen bill: 8. It can be seen from the above reproduced bill that the appellant has not charged any service tax separately but when the revenue authorities directed them to pay ser .....

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