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2019 (3) TMI 816

Held that:- If the refund is eligible on merits and is filed within the time limit, unless the unjust enrichment aspect has been provided by the claimant, the refund should be sanctioned and credited to the Consumer Welfare Fund. If the claimant proves that burden of the duty/service tax has not been passed on to their customers, the same needs to be refunded. - The question is how to verify whether the claimant could have passed on the incidence of duty/service tax indirectly to their customers by adding the same as their cost of production of goods or cost of rendering the services. If so, whether the claimant can still get the refund of the duty/service tax. This issue has been settled by Hon’ble Apex Court in the case of Solar Pesticides Pvt.Ltd. [2000 (2) TMI 237 - SUPREME COURT OF INDIA] in which it has been categorically held that even if the appellant passes on the incidence of duty/service tax to their customers indirectly, the concept of unjust enrichment applies. - In the present case, there is no dispute about the eligibility of the refund or the time limit. The lower authority rejected the refund claim on the ground of unjust enrichment which is, prima-facie, .....

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not the service rendered by one person to the other one, therefore no service tax is payable. The service tax already paid by M/s Advanta Limited needs to be refunded to them. After following due process, the Learned lower authority held that the refund was filed within the time limit under section 83 of the Finance Act, 1994. He also held that in view of the order of Hon ble High Court of Gujarat, the refund claim is admissible on merits. However, he held that the refund claim is hit by unjust enrichment as the respondent failed to prove that the burden of service tax has not been passed on to their customers either directly or indirectly. He relied upon the judgment of Hon ble Supreme Court in the case of Solar Pesticides Pvt. Ltd. [2000(11)ELT 401 (SC)] in which Hon ble Apex Court held that the principle of unjust enrichment is required to be satisfied even in cases of refund where the inputs or input services are used by the claimant because this burden could have been passed on indirectly to the customers as a part of the cost of production. Aggrieved, the appellant preferred an appeal to the first appellate authority who set aside the order in original and allowed the appeal .....

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iginal authority came to pass the instant order without issue of a notice or giving an opportunity to the appellants to be heard in person. In the light of such evidence the original authority was required, before denying the claim, to prove with counter evidence that service tax amount claimed as refund had, in fact, been recovered by the appellants directly or indirectly from others. The original authority has, impliedly, referred to the burden of such tax paid to Government by appellants being passed on, in an indirect way, basing on his finding that no evidence, such as C.A. certificate or self declaration, had been submitted before him by the appellants to rebut the presumption in law that the incidence of duty has been passed on. This view of the original authority, in my view, is unilateral and made without challenging the appellants on facts. Therefore, it is bad in law. Just because no proof came to be submitted by the appellants, it cannot be said that the burden of duty had been passed on indirectly. Even assuming that they had so passed on the duty, the question to be answered would be to whom did they transfer such burden of duty? In this case, it is clear in terms of .....

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ot so or that the burden had, in fact, been passed on in some manner verifiable. Such exercise has not been attempted by the original authority presumably for lack of evidence. In such factual position, the appellants would be rightly entitled to refund of the tax claimed by them. Accordingly, I hold that the order passed by the original authority is liable to be set aside with consequential benefit of refund to the appellants as per law. 4. Revenue is aggrieved by this order of the first appellate authority and appealed on the following grounds: (a) The first appellate authority has erred in accepting the Chartered Accountant s certificate produced before him stating that he had verified the books of accounts and other records of the assessee and based on the verification certified that the service tax component has been shown as service tax receivables in the books of accounts and has not been added to their profit & loss account. (b) The respondent was duty bound to prove through their books of accounts that they had not collected the service tax from their customers which the respondent had failed to do. (c) The Chartered Accountant certificate produced by the respondent is .....

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5 (Tri.-Del.)] d) SKOL Beverages Ltd. [2014(35)str 804 (Tri.-Mum.)] 7. We have considered the arguments on both sides and perused the records. There are three aspects with respect to each refund (a) time bar (b) merits and (c) unjust enrichment. If the refund is eligible on merits and is filed within the time limit, unless the unjust enrichment aspect has been provided by the claimant, the refund should be sanctioned and credited to the Consumer Welfare Fund. If the claimant proves that burden of the duty/service tax has not been passed on to their customers, the same needs to be refunded. The question is how to verify whether the claimant could have passed on the incidence of duty/service tax indirectly to their customers by adding the same as their cost of production of goods or cost of rendering the services. If so, whether the claimant can still get the refund of the duty/service tax. This issue has been settled by Hon ble Apex Court in the case of Solar Pesticides Pvt.Ltd. (supra) in which it has been categorically held that even if the appellant passes on the incidence of duty/service tax to their customers indirectly, the concept of unjust enrichment applies. In other words, .....

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sfying oneself that the burden of duty/service tax has not been passed on. Therefore, in each and every case, the Officer/adjudicating authority/appellate authority will have to examine the facts and the documents available including the chartered accountant s certificate, if any, to arrive at a conclusion as to whether the burden has been passed on to their customers or not. There are several cases where the Chartered Accountant certificate is not categorical and comprehensive as required to satisfy the authorities and in such cases they may have to call for more information and satisfy themselves. In this particular case, the Chartered Accountant certificate reads as follows: TO WHOMSOEVER IT MAY CONCERN This is to certify that, we have verified the books of accounts and other records of UPL Limited having its registered office at 3/11, GIDC, Vapi -396 195 Gujarat for the period April 2015 to June 2016 and based on verification, we certify that the company have shown separately the amount of service tax of ₹ 4,08,72,439/- as service tax receivable in their books of accounts and therefore, not collected the said amount from any party as part of cost of goods sold. We further .....

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