TMI Blog2019 (2) TMI 1424X X X X Extracts X X X X X X X X Extracts X X X X ..... clarified the same to be non-taxable. Therefore, the service tax is supposed to be treated as deposit as there is no sanctioned behind it by the legislature in conformity to Section 265 of the constitution of India. The appellant has passed the test of unjust enrichment and it is entitled to the refund claimed by it for non-leviable Service Tax - appeal allowed - decided in favor of appellant. - APPEAL NO. ST/86812/2018 - A/85361/2019 - Dated:- 22-2-2019 - DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri K.A. Photographer, Associate Vice President for Appellant Shri Dilip Shinde, Assistant Commissioner (AR) for Respondent ORDER Rejection of refund claim made by the appellant on the ground that it failed to qualify the test of unjust enrichment is the subject matter of this appeal in this second round of litigation. 2. Factual backdrop of the case is that appellant M/s Godrej Boyce Manufacturing Co. Ltd. claimed refund recalculated as ₹ 19,66,794/- for the period from April 2008 to September 2008 on commission received for export of services from a Singapore based company M/s Komatsu Asia Pvt. Ltd. against sale and services of its trucks in Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant refund claim. The claimant has submitted that the provision of unjust enrichment do not apply in the instant refund claim. They submitted that the refund claim is in respect of the amount of Service Tax wrongly paid by them on commission received by them from their overseas clients, under reverse charge. I find the above claim made by the claimant is not correct. On perusal of the ST-3 filed for the period April, 2008 to September, 2008 by them, I find that the claimant has provided the Business Auxiliary Services as service provider. I also find that they have paid the Service Tax on Business Auxiliary Services through CENVAT credit except for the month of June, 2008. The payment under reverse charge was always required to be made through CASH only. Therefore the claim of the claimant that they made the Service Tax under reverse charge does not hold ground. (iii) xxxxxxx (iv) From the above bills, it can be seen that the claimant has received ₹ 9,37,714/- (inclusive of Service Tax) by way of foreign exchange remittance equivalent to USD 22,186/- from the foreign client and it was credited to their account. This is evident form FIRC no. 31290073 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Tribunal in case of CCE, Chennai-II Vs. M/s Caterpillar India Pvt. Ltd. reported in 2009 (246) ELT 725 (Tri.-Chennai), wherein the Tribunal in para 5 held that- ...............we find force in the contention of the Revenue that Chartered Accountant s certificate was not sufficient and that the Commissioner (Appeals) wrongly held that the grant of refund for the period 2/01 to 4/01 was free from the vice of unjust enrichment. Further the certificate issued by the customer does not mention details of bills where they have paid only the commission amount and not the Service Tax. In view of the above, the certificate issued by the customers is of no use to the claimant. 11. The claimant has also argued that the provisions of Section 11B of the Central Excise Act, 1994, in relation to unjust enrichment, do not apply to the amount of Service Tax paid under reverse charge. They have also relied on the Tribunal decision in case of Commissioner Vs. Pulcra Chemicals 2015 (39) STR 700 (T) and Commissioner Vs. S. Mohanlal 2010 (18) STR 137 (T). I have already held in para 8 (iv) (ii) above that the payment made by the claimant is not under reverse charge and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Del.)] in the case of Western Union Financial Services Inc. Vs. Commissioner of Service Tax, Delhi and [2015 (40) STR 699 (Tri.-Mumbai)] in the case of Commissioner of Service Tax, Mumbai-I Vs. Vodafone (India) Ltd. were all in favour of appellant, for which he prayed to set aside the order of the Commissioner (Appeals). 6. In response to such submissions, Shri Dilip Shinde, learned Assistant Commissioner (AR) for the respondent-department has supported the reasoning and rationality of the order passed by the Commissioner (Appeals) and brought the attention of this court to the decision reported in 2018-TIOL-1811-CESTAT-BANG wherein, placing reliance on amendment made to Section 86 of the Finance Act, 1994, finding has been given that such rebate claim is not maintainable in the Tribunal which is supposed to be dealt by the Revisionary Authority. For which he sought no interference in the order passed by the Commissioner (Appeals). 7. Heard from both sides at length and perused the case records. When jurisdiction of Tribunal is challenged the same is required to be answered first before devolving into merit of the appeal. When the first refund claim was filed, it was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority have ignored this documentary evidence and only placed their reliance on bifurcation of tax component in the invoice raised by the appellant, which appellant claims to have been prepared for the purpose of calculation of Service Tax liability only and on the basis of foreign exchange remittance as well as invoice copies, Commissioner (Appeals) had drawn a presumption that incidence of duty had passed on knowing, fully well that presumption/suspicion, however strong, cannot take the place of proof. Despite the fact that Adjudicating Authority vide his order dated 28.10.2016 (page no. 12 of the appeal memo) under para 8 (iii) had given his observation that it was for the appellant to change/amend their CIF system to make it complacent as per their requirement and they have not done so. Further, when the service receiver denied to have born the incidence of tax, it is not understood as to why the same was not found believable by the Adjudicating Authority and placing reliance on this Tribunal judgment in M/s Mukund Ltd. Vs. CCE, Mumbai-VI reported in [2004-TIOL-1166- CESTAT-MUMBAI as well as decision of Tribunal in the case of CCE, Chennai-II Vs. M/s Caterpillar India Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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