TMI Blog2024 (1) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... accountant certificate which certifies that the service tax is nil rated or otherwise, the amount receivable from the service recipient is same. It was also certified that no separate recovery on account of service tax was made from the service recipient. The payment of service tax was borne by the appellant themselves and the same was not collected from the service receiver. It is also fact on record that as per books of account for the year 2013-2014, the amount of refund shown as service tax receivable under asset side of trial balance sheet, this also proves that the amount of service tax has not been passed on to any other person - the amount of refund has not been passed on to any other person. Hence, the same is not hit by unjus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. However, the reviewing authority found that the Adjudicating Authority has failed to address the objection raised by the audit viz: (i) The tender/ work order/ contract for hiring vehicle as agreed upon between the service provider and the service receiver is inclusive of all taxes including the service tax portion. (ii) The service provider is eligible for a refund of cum duty price basis as the service tax amount is inclusive part of the agreement and the respondent has already recovered the same from the service receiver. Hence revenue filed the appeal before the Commissioner (Appeals). The Learned Commissioner (Appeals) set aside the Order-In-Original and allowed the revenue s appeal. Therefore, the present appeal is file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant is refundable to the appellant. The reasoning given by the learned Commissioner (Appeals) for rejecting the refund claim on the ground of unjust enrichment is that since the contract provides that the value of service is inclusive of tax whatever the service tax was paid by the appellant is included in the gross value of service. Accordingly, the incidence of service was passed on. On scrutiny of the documents , we observed that even though such terms of inclusive of tax in the value is mentioned in the contract but the appellant have paid the Service Tax over and above the bill value, therefore, it cannot be said that the service tax paid by the appellant is included in the gross value of the service which was recovered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of service tax is deposited by the said assessee to the department in due date The same got verified with the trial balance sheet submitted by them for F.Y. 2013-14. And, the claimed amount is shown as Service Tax Refundable under asset side of Trial Balance sheet (2013-14). Thus, the service tax was solely deposited on their own account by them on due date in the department. Further, I find force in the said assessee' submission that service tax has been borne by them and not passed on to anyone. They have already submitted invoice copies in which it clearly shows that they have not collected service tax from any person. Also certificate from service receiver which states that service tax has not been collected from them ie se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enrichment as discussed in forgoing paras and the remaining portion after excluding the amount of Rs. 6,66,625/-(Time barred as detailed in Para 9) is not hit by limitation of time bar. 4.1 From the above finding it is clear that the payment of service tax was borne by the appellant themselves and the same was not collected from the service receiver. It is also fact on record that as per books of account for the year 2013-2014, the amount of refund shown as service tax receivable under asset side of trial balance sheet, this also proves that the amount of service tax has not been passed on to any other person. Accordingly, we are of the clear view that the amount of refund has not been passed on to any other person. Hence, the same is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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