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TMI Blog2019 (3) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorities thought would fall under the category of 'site formation and clearance, excavation and earth moving and demolition services'. The officers on visit directed the appellant to pay the amounts of service tax so calculated by them. Appellant contested the said but paid the same and subsequently noticing that the services rendered by them would get correctly classifiable under the services of mining which is introduced w.e.f. 01.06.2007, they filed a refund claim with the authorities. The adjudicating authority after following due process of law rejected the appeal filed by the assessee. Aggrieved by such an order, revenue preferred an appeal before the Tribunal in Appeal No.ST/575/2008 dated 19.12.2010. South Zonal Bench at Bangal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up to September, 2006 and hence the Chartered Accountant's has given the certificate correctly for the period. It is his submission that the appellant had never filed any refund claim for the service tax paid post the period in question and there is no case made out in the show cause notice that appellant has collected the service tax for the period in question from their service recipient. Subsequently he relies upon the judgment of the Tribunal in the case of Paul's Engineering Industries [2008 (10) STR 561], Visaka Industries Ltd [2009 (248) ELT 865] and Essar Oil [2018 (361) ELT 1065] for the proposition that Chartered Accountant's Certificate cannot be brushed aside. 4. Learned departmental representative, on the other hand, submits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese findings of the first appellate authority are beyond the allegations made in the show cause notice as the show cause notice is not referring to any ascertainment by the jurisdictional service tax authorities that appellant had raised the debit notes and collected the service tax from their service recipient. We find that the CA's Certificate which was provided by the appellant during the adjudication proceedings specifically talks about the verification of the records for the period in question i.e., 16.06.2005 to 31.09.2006 and gave a clear certificate that the appellant had not collected any service tax from the service recipient. The adjudicating authority as well as the first appellate authority have ventured beyond the period in qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not recorded as receivables in the books of the appellant are not receiving any sum as service tax from the customers in any manner and hence it is to be held that service recipient has not paid the service tax element to the appellant. Therefore, doctrine of unjust enrichment is not attracted in this case. 7. It is to be noted that except relying on the investigation done at the back of the appellant, department has not produced any evidence whatsoever that service tax has been paid by the service recipient and if so the mode of payment to appellant. Hence only on the basis of conjectures and premises the lower authorities have rejected the refund claim which in our view is incorrect and the statistics which are sought to be mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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