TMI Blog2021 (4) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... is found that the company M/s Caparo Engineering India Limited have not passed on the burden of the service tax to their employees/ workers, the amount of refund shall be paid to the appellant. The appeal is allowed by way of remand. - Service Tax Appeal No. 50959 of 2019-SM - FINAL ORDER NO. 51235/2021 - Dated:- 1-4-2021 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Shri Ankur Uppadhyay, Advocate for the appellant Shri Pradeep Gupta, Authorised Representative for the respondent ORDER This appeal has been filed against order-in-appeal whereby the Commissioner (Appeals) have upheld the credit of refund amount to Consumer Welfare Fund, holding that the refund claim is hit by unjust enrichment. The Commissioner (Appeals) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Adjudicating Authority has held that the appellant have received service tax amount from M/s Caparo Engineering India Limited, which was later on deducted by M/s Caparo Engineering India Limited. Here I find that the Adjudicating Authority hold that the appellant has failed to establish that service tax paid by M/s Caparo Engineering India Limited has not been recovered from the end user and that merely deducting service tax from the applicant does not prove that the service tax has not been recovered from the end user/ consumer. In this case, once the appellant has recovered the service tax from their client M/s Caparo Engineering India Limited and passed on the incidence of service tax, then it is presumed, in terms of Section 12B o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umers. 8.2 I find that above judgment of Hon ble Supreme Court is squarely applicable to the facts of the case. I find that the Apex court decision cited by the appellant is earlier to above cited decision of Hon ble Supreme Court. Also the cited decision of Hon ble CESTAT is a decision of lower court. Hence both these case laws are of no help to them. 9. On this background, I find that no evidence has been brought on record by the appellant to prove that the incidence of Service Tax paid by their client, M/s Caparo Engineering India Limited has not been passed on to any other person. Therefore, I find that the Adjudicating Authority has correctly held that the appellant has failed to discharge their burden in this regard. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial benefits. 4. Learned Authorised Representative appearing for the Revenue has relied on the impugned order. 5. Having considered the rival contentions, I find that the appellant have not led evidence that there was no passing of the service tax burden to the end users of the canteen. In view of the contention of the learned Counsel at the bar that food has rather been given at subsidised rate, I allow this appeal by way of remand to the Adjudicating Authority with the direction to examine the agreement between the appellant and M/s Caparo Engineering India Limited, as well as other relevant documents like costing of food, price charged from the end users. If it is found that the company M/s Caparo Engineering India Limited have not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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