TMI Blog2019 (11) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... ally borne by the appellant was not passed on any other person. The fact remains that the sub contractor has charged the service tax and the same was reimbursed by the appellant to the sub contractor. The provision of the service tax was clearly made as expenditure in the books of the appellant - Even though I agree that merely because the service tax amount was shown as expenses that alone cannot establish that the incidence was passed on. However once the service tax amount is booked as expenditure then the burden to prove that the same was not passed on become heavy on the assessee. Though the service tax paid by the sub contactor though initially borne by the appellant and reimbursed the same to the sub contractor the treatment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t about the issue of unjust enrichment. The appellant filed appeal before the Commissioner (Appeals) against order dated 27.12.2007 wherein by order-in-appeal dated 24.11.2009 the O-I-O passed by the Assistant Commissioner was upheld. The appellant challenging the OIA filed appeal before CESTAT. The CESTAT vide order dated 10.11.2010 remanded the matter for verifying the refund claim and pass a fresh order. In the remand proceeding the Assistant Commissioner issued an SCN invoking unjust enrichment as well as the allegation of appellant not including the value of pre-issue material from the principal. By order dated 27.06.2011 the Assistant Commissioner confirmed the SCN and rejected the refund claim. Being aggrieved, the appellant filed ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore repeated or reopening of the already settled issue of unjust enrichment is illegal. He also placed on record the CA Certificate dated 23.06.2018 certifying that the appellant has borne the burden of service tax reimbursed to the sub-contractor and they have not collected the amount reimbursed to the sub-contractors from their customers. He further submits that appellant was recipient of service from sub contractor, the question of unjust enrichment does not arise. To this effect he placed reliance on the decision of CST vs S Mohanlal Services 2010 (18) STR 173 (Tri. Amd.). He further submits that tax collected from the sub contractor was not at all a tax leviable during the material period therefore the question of unjust enrichmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to prove that the same was not passed on become heavy on the assessee. In this case no any document clearly show that the incidence was not passed on. Moreover, the appellant is a main contractor and for the entire project they are raising the bills including the service charge to the extent of service provided by the sub contractor to their main client. Therefore, it is clear that the incidence of unjust enrichment has been passed on to the service recipient. The service provided by sub contractor including the service tax is the total value which is part and parcel of the value of the service which was charged by the appellant to their client. In this position though the service tax paid by the sub contactor though initially borne by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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