TMI Blog2008 (2) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... .V. Ravindran, Member (Judicial) [Order]-1. This appeal is filed by the revenue against the order-in-appeal No.PII/BKS/45/07 dated 29/03/2007 vide which the Ld. Commissioner (Appeals) has set aside the order-in-original which sanctioned the refund of the respondents but credited to the same to the Consumer Welfare Fund. 2. The brief facts of the case are that the respondents were manufactures of engineering goods and utilized the services of Goods Transport Operators and had to pay the Service Tax for the period 16/11/97 to 01/06/98 as service receiver after the retrospective amendment were made. While paying such service tax, the respondents did not realize that they were eligible for the benefit of the Notification No.43/97- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y value of the such certificate does not hold good as is held by the Tribunal in the case of Weikfield Products Co. (I) Ltd., in final order No. A/205/08/WZB/SMB/C-I dated 30/01/2008. He specifically reads the following para:- I have heard both sides and find no merit in the appeal of the assessee for the reason that there is nothing on record to rebut the presumption in law that the duty burden has been passed on by the assessee to their customers. Therefore, it has rightly been held by the Commissioner (Appeals) that the refund amount was shown as expenditure in profit and loss account and therefore has gone into the costing of the finished products and indirectly passed on to their customers. This view is supported by the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... squarely covered even by the recent judgment of the Tribunal in the case of CCE Pune Vs. Cummins India Ltd., as reported in 2008 (221) ELT 525 (Tr.-Mum). It is his submission that the Chartered Accountant certificate given in the first instance and the second instance are not challenged by the revenue in the grounds of appeal either in earlier proceedings or in the current proceedings. 6. Considered the submissions made at length and perused the records. 7. It is not undisputed that the respondents herein had paid the service tax on receipt of the services from the Goods Transport Agencies. This service tax was paid by the respondent on 16/12/2002, subsequent to the retrospective amendment, which made the recipient of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their profits, the refund claim not deniable. Further, I find that the appellants have also produced a CA certificated dated 13/3/2007 from M/s. B.C. Abhyankar Co. certifying that appellants had borne the incidence of Service Tax and had not passed on burden of Service Tax to the customers and had also not recovered the same from the transporters during the financial years 2002-2003 and 2003-04. In view of the above facts and in view of CA Certificate, the bar of unjust enrichment will be applicable. Therefore, the refund of Rs.29,441/- is admissible to appellants . 8. On perusal of the Chartered Accountant's certificate produced before the Ld. Commissioner (Appeals) and now produced before me, I find that reliance was placed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
