TMI Blog2020 (3) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific treatment/entry of the same in the profit and loss account should prove the fact that the incidence of duty of the tax amount has not been passed on to any other person. Thus, we are of the considered view that the balance sheet should be considered as the primary evidence and not secondary evidence, as held in the impugned order. Inasmuch as the appellant herein has specifically produced the profit loss account as well as the balance sheet for the relevant period, both before the original as well as first appellate authority, to demonstrate that the incidence of duty has not been passed on to any other person and the same has in fact, been borne by it. Since entry in the accounting head of Loans and Advances under the colum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide Order-in-Original No. 267/2017-18, dated 08.01.2018, wherein the Ld. Asst. Commissioner of Central Excise had sanctioned the refund amount in question in favour of the appellant. Aggrieved by the said adjudication order dated 08.01.2018, Revenue has preferred an appeal before the Ld. Commissioner (Appeals) which was disposed of vide impugned order dated 26.03.2019 in allowing the appeal of the department. The Ld. Commissioner (Appeals) has recorded in the impugned order that the appellant herein did not produce any evidence to show that the incidence of service tax has not been passed on to any other person. He has discarded the Chartered Accountant s certificate, Ledgers and Balance Sheet furnished by the appellant on the ground that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise, Nellore, we find that the appellant had specifically stated that the amount in question was reflected as claims receivable in the balance sheet and as such, the incidence of such refund claim amount has not been passed on to any other person. Considering the submissions made by the appellant, as recorded at Page 13 in the original order, the Ld. Asst. Commissioner has allowed the refund benefit to the appellant. However, on the same set of facts and records, the Ld. Commissioner (Appeals) while allowing the appeal filed by the Revenue has held that no Ledger/Balance sheet were produced by the appellant herein to demonstrate that the incidence of service tax has, in fact, been borne by it and not been passed on to any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in hand, inasmuch as the appellant herein has specifically produced the profit loss account as well as the balance sheet for the relevant period, both before the original as well as first appellate authority, to demonstrate that the incidence of duty has not been passed on to any other person and the same has in fact, been borne by it. Since entry in the accounting head of Loans and Advances under the column of Claims Receivable is sacrosanct for consideration of the issue of applicability of the doctrine of unjust enrichment, the case in hand merits consideration in favour of appellant and thus, the amount in question should appropriately be paid to the claimant-appellant instead of it being credit to the Consumer Welfare Fund. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
