TMI Blog2007 (9) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... td. was functioning as the Asset Managing Company of the Kerala Venture Capital Fund. The function of the appellant is to manage the venture capital. The appellant in terms of the agreement entered by them with Kerala Venture Capital Fund received Rs. 40/- lakh as management fee in advance in the year 2003-2004. Therefore, Service Tax at the rate of 5% was paid in advance by the appellant. The Service Tax amounted to Rs. 2/- lakh. Before the conclusion of the financial year, on March 25th 2003-2004, the appellant entered into a supplementary agreement with the Kerala Venture Capital Fund. The effect of the agreement is that the management fee would be based on the actual expenditure and whatever fee collected in excess would be refunded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant and Shri Sunith Kumar, learned DR for the Revenue. 4. We heard both sides. The learned Advocate took us through the original agreement and also the supplementary agreement. He urged the point that only in terms of the original agreement which was entered in the year 2000, the supplementary agreement was made and in terms of the supplementary agreement, the appellants are rightly entitled for the refund of the excess Service Tax paid. He also urged that the Chartered Accountant has certified that the excess tax has been refunded to the recipient of the service. He invited our attention to the certificate wherein the Chartered Accountant has stated that the excess amount collected has been refunded to the service recipient on 31-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the decision in the case of Sangam Processors Ltd. v. Collector of Central Excise, Jaipur - 1994 (71) E.L.T. 989 (Tri.), wherein it was held that subsequent credit notes in respect of duty incidence issued by the assessee to the customers is not admissible. He urged the point that this decision of the Sangam Processors case has been followed in various decisions of the Tribunal. Further, the Sangam Processors decision has been upheld by the Hon'ble Apex Court. He invited our attention to the decision of the Lager Bench in the case of S. Kumar's Ltd. v. CCE, Indore - 2003 (153) E.L.T. 217 (Tri.-LB) wherein the Larger Bench has held in the context of the Sangam Processors decision that when a civil appeal is dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also relied on the decision of the Tribunal in the case of Memirex Co. v. CCE, Allahabad - 2004 (174) E.L.T. 216 (Tri.-Del.) wherein in the facts and circumstances of the case, the Chartered Accountant's certificate which was based only on an inference was not accepted. 4.2 On a very careful consideration of the issue, we find that the appellant claimed the refund of Rs. 60,000/- being the excess Service Tax paid. How ever, the Original Authority issued a show cause notice for rejecting the refund claim on the grounds of unjust enrichment. The show cause notice was issued on 27-7-2004 and the appellants had filed a reply to the show cause notice on 10-8-2004. The personal hearing was granted on 15-9-2004. It is seen from the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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