TMI Blog2016 (11) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... of the above, the said certificate cannot be discarded just like that. In view of above, the rectification of mistake application is allowed. - Application No. C/ROM/92609 & 92610/16 in Appeal No. C/1028 & 1029/07 - Order No.M/90479-90480/16/SMB - Dated:- 16-9-2016 - SHRI RAJU, MEMBER (TECHNICAL) Respondent By: Shri M.K. Mall, AC (AR) Appellant By: Shri Prakash Shah, Advocate Per: Shri Raju These ROM applications have been filed by the applicant, M/s Jindal Drugs Ltd., for rectification of mistake in the Order No. A/85268-85269/16/SMB dated 07.01.2016. In paragraph 4.4 on page 10 of the said order, the following has been mentioned: - They have produced copies of two documents from earnest healthcare limited, clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. He further relied on the decision of the Tribunal in the case of Vyankatesh Real Estate Developers Vs. CCE, Nagpur - 2014 (35) STR 589 (Tri-Mum). He argued that in the said case on the basis of certificate of buyers, it was held that the burden of Service Tax has been passed on. He further relied on the decision of Hon'ble High Court of Gujarat in the case of Modest Infrastructure Ltd. - 2013 (31) STR 650 (Guj), wherein following has been held: - 11. Once the M/s. Alcock Ashdown (Gujarat) themselves issued certificate that the amount of service tax was not received by the respondent from their customers then there was no question of undue enrichment by the respondent. In our opinion the Commissioner (Appeals) as well as the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f appeal and is enclosed in the appeal memorandum as Exhibit A . Thus, there is indeed error in the Tribunal order dated 7.1.20016 that the said certificates were not produced before the lower authorities and need to be introduced as additional evidence. In view of the above, the said certificate cannot be discarded just like that. In view of above, the rectification of mistake application is allowed in following terms: - In para 4 and 5 the words - They have produced copies of two document from earnest healthcare limited, claimed to be the supporting manufacturers, both dated 20 th March 2007. These documents were neither produced before the lower authorities and not have not been sought to be introduced as additional evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the amount of service tax was not received by the respondent from their customers then there was no question of undue enrichment by the respondent. In our opinion the Commissioner (Appeals) as well as the Tribunal were correct in taking the view that the refund was liable to be paid to the present respondents as service tax was not passed on to the buyers/customers and there was no unjust enrichment. Therefore, we do not find any illegality in the impugned orders. We are in agreement with the view taken by the Tribunal and Commissioner (Appeals) that there was no unjust enrichment and the respondent is entitled for refund. Both the questions formulated are concluded by finding of fact and the appeal is liable to be dismissed. Both quest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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