TMI Blog2022 (2) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... umption is that the aforesaid amount has been shown as an expense in profit and loss account by the appellant - since the payment was made under RCM there appears no error on part of appellant when the said payment is shown as expense in the profit and loss account. Commissioner (A) has failed to appreciate the Chartered Accountants Certificate dated 17.11.2019 as was issued by the statutory auditors of the appellant alongwith the relevant pages of the balance-sheet for the year 2016-17 and 2017-18. The said documents were appreciated by original adjudicating authority to have been shown the pre-paid expenses of ₹ 1,29,17,302/- under the note No.20 of the audited balance sheet 2016.17 . The document were also observed to have provided the bifurcation for an amount of ₹ 15,65,000/- as bar license fees pre-payment and ₹ 39,74,331/- as rates and taxes for the year 2017-18 including therein ₹ 1565000/-as liquor license fee in the balance sheet of 2017-18. These documents were held sufficient by the original adjudicating authority to prove that the appellant had not passed the burden of refund claim amount to the others. Hence, the claim was denied to be hit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authority vide order No.26/2019 dated 27.12.2019. The said order was however, reviewed by the Department vide Order dated 24th March, 2020. Pursuant thereof an appeal was preferred by the Department before Commissioner (Appeals) and the impugned order under challenge was passed rejecting the claim of the appellant. Being aggrieved the appellant is before this Tribunal. 3. I have heard Shri Sanjiv Agarwal, ld. Counsel for the appellant and Shri Mahesh Bhardwaj, ld. D.R. for the Revenue. 4. It is submitted on behalf of the appellant that the Order under challenge is an order passed by the quasi-judicial authority. The same cannot be reviewed. Ld. Counsel has relied upon the case law in the case of Topcem India vs. Union of India reported in 2021 (376) ELT 573. It is further submitted that the refund has been rejected on the ground that the amount would have been recovered by the appellant from their customers. The observation is alleged to have been absolutely wrong. It is submitted that the payment of Service Tax was made in the year 2017. However, the amendment with retrospective effect, came into existence in 2019 within 6 months thereof the refund in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant at the appropriate time i.e. during 2017-18. (iii) Immediately after it was pointed out by the audit team of the Revenue while auditing for period April 2016 to June, 2017 on 15.11.2017 that the appellant deposited the amount of his service tax liability under RCM i.e. ₹ 234750/- within 3 days of the same being pointed out i.e. on 18.11.2017. Not only this, the amount of interest of ₹ 27,012/- was also paid on the same day. (iv) The payment of service tax was held to not to be the liability of the appellant any more in terms of the amendment introduced by Finance Act, 2019 provided that the levy pertains to the period from 01.04.2016 to 30th June, 2017. (v) The refund claim to which appellant become entitled pursuant to the introduction of retrospective amendment was filed within the stipulated time period of 6 months of coming into effect the Finance Act of 2019. (vi) Lastly, apparently and admittedly, present is not the case of alleged duty evasion. Rather the payment of service tax for the Financial Year 2017-18 admittedly was made by the appellant though subsequently, but with respect to the liability that accrued during the period mentioned in claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposited by the appellant with the State Government of Rajasthan for getting a liquor license in favour of the appellant. The impugned refund would not have ever been applied had there not been an amendment in Finance Act, 2019, that too with the retrospective effect. The said amendment since came two years later, also the duty was not paid at the appropriate time but payments was made later after it was pointed by the audit team, that too, under reverse charge mechanism. Hence, from no stretch of imagination, it can be presumed that the burden of said payment would have been passed on to the customers. Department has not produced any positive evidence to prove the same. Otherwise also the only reason for such presumption is that the aforesaid amount has been shown as an expense in profit and loss account by the appellant. To my opinion in the given circumstances since the payment was made under RCM there appears no error on part of appellant when the said payment is shown as expense in the profit and loss account. 10. Commissioner (A) has relied upon the decision of Hon ble Apex Court in the case of Maffatlal Industries (supra), while confirming his opinion about the impugned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 15,65,000/- as bar license fees pre-payment and ₹ 39,74,331/- as rates and taxes for the year 2017-18 including therein ₹ 1565000/-as liquor license fee in the balance sheet of 2017-18. These documents were held sufficient by the original adjudicating authority to prove that the appellant had not passed the burden of refund claim amount to the others. Hence, the claim was denied to be hit by clause of unjust enrichment. 13. In view of the entire above discussion, I do not find any infirmity in the aforesaid findings of original adjudicating authority. Appellate Authority/ Commissioner (A) has not given any finding which may falsify the findings of original adjudicating authority. Commissioner (Appeals) has been silent about CA certificate. Thus, I opine that Commissioner (Appeals) has committed an error by holding the refund to hit by unjust enrichment merely on presumptive basis. No relevant evidence at all been discussed by him while coming to the said conclusion. Rather, the relevant evidence as was considered by Original adjudicating authority has miserably been ignored by the Appellate Authority. 14. The entire above discussion is sufficient to ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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