9911796707
TMI Blog2018 (2) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... only) paid by them against services rendered to M/s. Seven Seas Distillery Ltd. Further the Commissioner (Appeals) has rejected the refund of Rs. 15,66,169/- (Rupees Fifteen Lakhs Sixty Six Thousand One Hundred and Sixty Nine only) on the ground of unjust enrichment. Briefly the facts of the case are that the assessee is registered as a service provider under Finance Act 1994 under the category of Business Auxiliary Service. They filed an application for refund of service tax paid by them on the ground that service of blending and bottling of IMFL on behalf of their clients was not taxable under Business Auxiliary Service as clarified by Ministry of Finance vide F.No. 249/1/2006 CX.4 dated 27.10.2008. The adjudicating authority found that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Three only) is not sustainable in law as the same is contrary to the binding judicial precedent. He further submitted that there is every likely-hood that the service tax element would have been a part of the sale price of the products of the clients, M/s. Seven Seas, which would have been ultimately passed on to the consumers. He further submitted that the Commissioner (Appeals) while allowing the refund has relied upon the decision in the case of Prism Cement Ltd. Vs. UOI reported in 2003 (161) ELT 93 (All). Further the Commissioner (Appeals) has observed that where the tax was collected without authority of law, the time-limit under Section 11B of the Act is not applicable and consequently allowed the refund. The learned AR for the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with all the taxes will be paid by the principal manufacturer, the statutory liability to pay the tax is on the service provider and the same cannot be shifted through an agreement. Therefore, they had not paid the same or reimbursed the tax paid by the service provider and therefore, the question of collecting the same from the client cannot arise. He further submitted that the assessee was under the genuine impression that the activity undertaken being manufacture of IMFL, no service tax would be applicable. This aspect was later clarified by the Board as per Circular F.No. 249/1/2006 dated 27.10.2008. During the intervening period when the demand was made, the tax was paid under protest from the total amount received from the client. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Commissioner (Appeals) that whether the entire amount which is sought to be claimed as refund was paid under protest or not. Further I find that the Commissioner (Appeals) has disallowed the refund claim of Rs. 15,69,169/- (Rupees Fifteen Lakhs Sixty Nine Thousand One Hundred and Sixty Nine only) for the period from April 2006 to September 2007 holding that no evidence was produced to establish that the tax has not been passed on to the clients. In reply to this, the learned counsel for the assessee submitted that the tax was paid for the period from April 2006 to September 2007 on 16.11.2007 from the total amount received from the client clearly marking under protest on each challan and a formal letter was also given on 22.11.2007. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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