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2019 (5) TMI 719

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..... e service tax from the service recipient and the aspect of unjust enrichment is absent in the present case. Further, the original authority as well as the appellate authority has come to the conclusion that since the appellant has shown the amount of refund as expenses in the Profit and Loss Account and thereby they have passed on to its customers. This issue has been considered by the Madras High Court in the case of COMMISSIONER OF C. EX., COIMBATORE VERSUS FLOW TECH POWER [2006 (1) TMI 37 - HIGH COURT OF JUDICATURE (MADRAS)] , and it has come to the conclusion that the unjust enrichment is not applicable even when the refund amount is claimed as expenses in the Profit and Loss Account. Refund allowed - appeal allowed - decided in f .....

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..... led by the Department against this was dismissed by the Division Bench of the Hon ble High Court of Kerala on 21/10/2014. Thereafter, the Department issued a show-cause notice dated 8.1.2014 to show-cause as to why refund claim should not be rejected. After following the due process, the Assistant Commissioner, Palakkad Division, sanctioned the refund claim but credited the same to the consumer welfare fund as provided under Section 11B(2) of the Central Excise Act, 1944 as made applicable to Service Tax as per Section 83 of the Finance Act, 1994 on the ground that the financial records of the appellant for the period 2012-2013 and 2013-14 show that the amount under claim of refund has been treated as expense and thereby passed on the effec .....

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..... uthority and has categorically stated that the appellant have not collected the service tax from the service recipient and the aspect of unjust enrichment is absent. He further submitted that identical issue has been examined by the Hon ble High Court of Madras in the case of CCE, Coimbatore vs. Flow Tec Power: 2006 (202) ELT 404 and has held that unjust enrichment is not applicable even when the refund amount is shown as expenses in the Profit and Loss Account as the assessee has suffered the duty and not passed on to the customers. The assessee has also relied upon the following decisions on this issue: Interplex India Pvt. Ltd. vs. CCE, Ahmedabad: 2013 (290) ELT 386 CCE, Pune-III vs. Cummins India: 2008 (221) ELT 525 CCE, Pune-II vs. VED .....

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..... here the Hon ble Kerala High Court has held that levy of service tax on Restaurant Services and Short-term Accommodation Services was beyond the legislative competence of the Parliament as transaction is covered by Entry 54 of List 2 of Seventh Schedule to the Constitution of India. Further, I find that refund claim filed by the appellant was sanctioned by the adjudicating authority but the same was credited to Consumer Welfare Fund as per Section 11B(2) of the Central Excise Act as made applicable to Service Tax as per Section 83 of the Finance Act, on the ground of unjust enrichment. Further, I find that in the present case, the Doctrine of Unjust Enrichment is not applicable because the Range Officer after verifying the records of the ap .....

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