TMI Blog2017 (7) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal dismissed - decided against Revenue. - ST/688/2012-SM - 20887/2017 - Dated:- 15-5-2017 - Shri S.S Garg, Judicial Member Shri K.T. Pakshirajan, Assistant Commissioner (AR), For the Appellant Shri Rajesh Chander Kumar, Advocate, For the Respondent ORDER Per: S.S GARG The present appeal has been filed by the Revenue against the impugned order dated 28.12.2011 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has set aside the Order-in-Original No.117/2009 dated 15.10.2009 and allowed the appeal of the assessee with consequential benefit Briefly the facts of the case are that the respondent being a service tax assessee under 'Intellectual Property Service' have paid the service t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,16/992/- (Rupees Fifteen Lakhs Sixteen Thousand Nine Hundred and Ninety Two only) but credited the same to Consumer Welfare Fund as per the provisions of Section 11B(2) of Central Excise Act 1944 without making any payment to the appellants on the ground of non-production of evidence to establish that the burden of tax payment has not been passed on to the Customer. Aggrieved by the said order, respondent filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) vide the impugned order has allowed the appeal of the respondent and set aside the Order-in-Original and hence the present appeal. 2. Heard both the parties and perused the records. 3. Learned AR for the Revenue has submitted that the impugned order is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al proceedings of the Tribunal. The second submission of the learned counsel for the assessee is that the order of the lower authority is beyond the show-cause notice dated 17.11.2005 as the said ground of unjust enrichment was never raised in the show-cause notice and in support of this submission, he relied upon the following decisions: a) CCE Cus. Surat V. Sun Pharmaceuticals Inds. Ltd 2015 (326) E.L.T. 3 (SC) b) CCE, Bhubaneswar-l V. Champdany Industries Ltd 2009 (241) E.L.T. 481 (SC) c) Reckitt Colman of India Ltd. V. CCE, 1996 (88) E.L.T. 641 4.2 He further submitted that it has been consistently held by various Courts that unless the foundation of the case is made out in the show-cause notice, the Revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CST, Delhi-II 2015 (39) STR 485 (Tri. - Del.) b) Hexacom (I) Ltd. V. CCE, Jaipur, 2003 (156) E.L.T. 357 (Tri. - Del.) c) CCE, Pune - II V. Kirloskar Ebara Pumps Ltd - 2007 (5) STR 280 (Tri. -Mumbai) In these decisions it has been held that it is the service provider who has to pay the service tax and as a recipient of services when it is the obligation of the respondent to discharge the service tax, the question of recovering the same from the service provider does not arise. He also submitted that the assessee also furnished CA certificate showing duty element not passed on to the buyer which is sufficient evidence but the same has not been considered by the sanctioning authority. He further submitted that the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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