TMI Blog2022 (3) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... as shown as current expenditure and formed part of the Profit and Loss account of the assessee. Thus if the claimant himself has treated the refund amount due as expenditure and not as claims receivable , the claimant cannot said to have passed the test of unjust enrichment. Nothing contrary to the findings recorded by the Commissioner (Appeal) has been stated by the appellant in his appeal - appeal dismissed - decided against appellant. - Service Tax Appeal No. 89418 of 2018 - FINAL ORDER NO. A/85167/2022 - Dated:- 24-2-2022 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) None for the Appellant Shri Dilip Shinde, Assistant Commissioner, Authorised Representative for the Respondent ORDER This appeal is directed against order in appeal No NSK/EXCUS/000/APPL/340/2017-18 dated 16.03.2018 of the Commissioner of GST Central Excise, Nashik. By the impugned order, the Commissioner (Appeals) has held as follows: I reject instant appeal filed by the appellant and uphold the impugned Order in Original No 92/DC(ST)/REFUND/NSK-1/2016 dated 31.10.2016 passed by Deputy Commissioner, Central Excise, Customs and Service Tax, Nasik-1 rejecting the refund claim filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. However I notice that appellant since the filing of appeal has shown total lack of interest in the matter and has not even caused proper appearance either in person or through authorized representative. The details of the past proceedings are recorded in the table below: S No Record of proceedings/ Order Sheets. 1 Date of Hearing: 13.03.2019 As Hon'ble Member (Judicial) were on leave, the matter is adjourned to 22/04/2019 2 Date of Hearing: 22.04.2019 None for the applicant. List the matter on 7th June 2019 3 Date of Hearing: 07.06.2019 Applicant is absent. Hearing is adjourned to 09/07/2019 4 Date of Hearing: 09.07.2019 Adjourned to 23/07/2019 for submission of additional information by way of affidavit and hearing of COD application. 5 Date of Hearing: 23.07.2019 None present for the Applicant. Adjourned to 22.08.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presentative Mr. Dilip Shinde is present. Hearing is adjourned to 24/02/2022. 3.2 Interestingly even the application for condonation of delay was adjudged by the tribunal in favour of the appellant in his absentia, vide order dated 23.09.2021. The counsels who appeared for sometime in midst have categorically stated on 22.10.2021 that they do not have the instructions or the brief in the matter. 3.3 Rule 20 of CESTAT Procedure Rules, 1982 provides as follows: Action on appeal for appellant s default . - Where on the day fixed for the hearing of the appeal or on any other day to which such hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or hear and decide it on merits : Provided that where an appeal has been dismissed for default and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called on for hearing, the Tribunal shall make an order setting aside the dismissal and restore the appeal. 3.4 In view of the above this appeal can be dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to as the appellant'). The appellant are small time contractors who undertake activities of cleaning, loading, unloading, collection of coal mill reject etc. The preventive wing of Central Excise department has initiated enquiry and asked to pay the service tax under Business Auxiliary Services', 'Cargo Handling Services' and 'Cleaning Services' The Show Cause Notice is issued and OIO was issued and the appellant has filed appeal before Commissioner (Appeal) and Commissioner (Appeal) has set aside the demand under Business Auxiliary Services', 'Cargo Handling Services' and upheld the demand under Cleaning Service. The CESTAT has upheld the order of Commissioner (Appeal). 3.2 Accordingly the appellant has filed the refund for net amount of demand and refund. The total refund is due ₹ 31,61,357/ which is reduced by ₹ 20,92,806/ - for the demand and penalty confirmed under the order. The appellant has applied for refund entire amount of Service tax paid under Business Auxiliary Services', 'Cargo Handling Services' and asked to deduct the demand under Cleaning Service. 3.3 The deputy commissioner has issued S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the foregoing submissions, it is respectfully prayed that the OIO is set aside, the facts and circumstances of the case. Place :Nashik Date: 20.09.2018 For M/s B.M. Chapalkar Co. Shium Bhima Chapalkar PARTNER 4.3 From the above grounds as stated it appears that appellant has challenged the order of Commissioner (Appeal) on the ground of limitation. However as per impugned order para 31, after examining the provisions of Section 11B of Central Excise Commissioner (Appeals) has observed as follows setting aside the rejection on the basis of limitation, In view of the provision (ec) above, it is clear that the period of one year shall start from the date of the order of the Appellate Tribunal which is 20.08.2015, in this case. The refund has been filed on 28.06.2016, which is within the time period. Therefore, observations of the lower authority are set aside. 4.4 Commissioner (Appeals) has upheld the order of original authority rejecting the refund claim on the ground of unjust enrichment stating as follows: 32. Now, I come to the issue of unjust enrichment. On the aspect of unjust enrichment, the appellant has claimed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the books of account of HPCL as claims receivable. This implies that the duty paid was shown as current expenditure and formed part of the Profit and Loss account of the assessee. Thus if the claimant himself has treated the refund amount due as expenditure and not as claims receivable , the claimant cannot said to have passed the test of unjust enrichment. This is the settled position in law. The appellant has also contended that the appellant's goods are sold at prices determined by the Govt. and therefore, it should be presumed that in the absence of a change in price, it should be presumed that the appellant has borne the incidence. Similar argument has been negated by the Hon'ble Apex Court in Allied Photographic India Ltd. [2004 (166) E.L.T. 3 (S.C.)], wherein it was held that uniformity in price before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors . Therefore, in the present case, the appellant HPCL has failed to cross the bar of unjust enrichment also and hence they are not eligible to claim the refund. 37. I therefore, am of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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