Tax Management India. Com
                            Law and Practice: A Digital eBook ...
TMI - Tax Management India. Com
Case Laws Acts / Rules Notifications Circulars Tariff/ ITC HSN Forms Manuals SMS News Articles
Highlights
        Home        
 
Extracts
Home List
← Previous Next →

2018 (7) TMI 855

Refund claim - unjust enrichment - refund allowed but transferred the same to Consumer Welfare Fund, in terms of Section 12C of the CEA, 1944 - burden of service tax has been passed on to the passengers/customers or not - Held that:- Similar issue has been considered by this Tribunal in identical set of circumstances/ arguments in M/s Rajdhani Travels & Ors case [2018 (4) TMI 168 - CESTAT AHMEDABAD], where it has been concluded that once the refund amount has been shown as an expenditure in the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

artment for providing services under the category of Tour Operator Service i.e. services of point to point passenger Transport Service from one boarding place to another in a vehicle having a contract carriage permit. They have filed a refund claim of ₹ 2,20,78,450/- on 07.10.2011 pursuant to Section 75 of the Finance Act, 2011 read with Notification No. 20/2009-ST dated 07.07.2009. Out of the said refund claim, the adjudicating authority had though sanctioned an amount of ₹ 2,07,92, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ount has been shown as expenditure in their books of account. It is his contention that this Tribunal has already considering the issue in the case of M/s Rajdhani Travels & Ors. vs. Commissioner (Appeals) of Central Excise-Ahmedabad vide Final Order No. A/10597-10600/2018 dated 27.03.2018 on the same set of facts and circumstances held that service providers could not establish the fact that the burden of service tax claimed as refund has not been passed on to the customers, when the same w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the Ld. AR for the Revenue has submitted that the Judgement of the Hon ble Gujarat High Court in Dhariwal Industries Ltd s case cannot be made applicable to the facts of the present case, inasmuch as, in the said case, the assessee has not admitted to the fact that the amount of duty claimed as refund has been shown as expenditure in their books of account and thus become part of the cost of the product. Similar situation is also in Bhadrachalam Paper Boards Ltd s case (supra). 7. We find that s .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d and produced by ULAI for the purpose of our review and verification and based on the information furnished to us, we certify that ULAI has not recovered the amount of Service Tax (Incl. cess) and interest paid as shown in the above table from its customers or any other person." It is seen that C.A. has made a blind observation regarding the non recovery of Service Tax and interest from the customers or any other person. If the said amount has not been recovered from anybody then the same .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

is not hit by bar of unjust enrichment. 4.2 Learned C.A. had argued that no evidence of any change in the price of service offered by them before and after such absorption of this refund amount against expenditure has been shown to prove that the burden of Service Tax has been passed on to other customers. To counter this argument, learned AR has relied on the decision of Allied Photographics India Ltd. - 2004 (166) ELT 3 (SC) = 2004-TIOL-27-SC-CX, wherein Hon'ble Apex Court has observed as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eivable. This implies that the duty paid was shown as current expenditure and formed part of the Profit and Loss account of the assessee. Thus, if the claimant himself has treated the refund amount due as expenditure and not as "claims receivable", the claimant cannot said to have passed the test of unjust enrichment. This is the settled position in law. The appellant has also contended that the appellant's goods are sold at prices determined by the Govt. and therefore, it should b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ser of the finished product or that the imported goods are sold as such with the incidence of tax being passed on to the buyer. In either case the principle of unjust enrichment will apply and the person responsible for paying the import duty would not be entitled to get the refund because of the plain language of Section 27 of the Act. Having passed on the burden of tax to another person, directly or indirectly, it would clearly be a case of unjust enrichment if the importer/seller is then able .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and we have no hesitation in applying the said principle to the facts and circumstances of the present case, which are similar in nature to the aforesaid case. In our considered view, the judgements referred to by the Ld. Chartered Accountant for the Appellant is not applicable to the facts and circumstances of the present case, inasmuch as, the service tax claimed as refund, in those cases, has not been shown/booked in the balance sheet as an expenditure and entered into the cost of the service .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

Discussion Forum
what is new what is new
 


|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.