TaxTMI 
TaxTMI 
2011 (5) TMI 692
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....ril 2002 & May 2002 to September 2002 respectively. The said amounts of service tax were paid under the head 'Clearing & Forwarding Agency Services'. The refund claims were filed on 23/07/2002 and 27/03/2003 respectively. The department issued two show-cause notices dated 07/10/2002 & 22/05/2003 proposing to reject the claims for refund of Rs.3,18,16,233/- and Rs.53,88,179/- respectively, on merits as well as on the grounds of limitation and unjust enrichment under Section 11B of the Central Excise Act read with Section 83 of the Finance Act, 1994. Both the show-cause notices were contested by the party. In adjudication of the dispute, the Assistant Commissioner passed a common order, the operative part whereof reads....
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....ng companies were on a principal-to-principal basis and not on agent to principal basis. In this connection, the learned Consultant has narrated the manner in which the appellant had dealt with petroleum products, which were delivered to the oil marketing companies (customers). Adverting to the decision of the lower authorities on the limitation issue, the Consultant submits that as the service tax had been paid 'under protest', the limitation prescribed under Section 11B ibid is not applicable to this case. However, this contention is stated to be restricted to the period from January 2002 inasmuch as, according to the Consultant, the payments of service tax 'under protest' were made from that month only. He has also shown us a copy ....
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....learned SDR submits that this finding of the Assistant Commissioner was not challenged by the assessee before the Commissioner (Appeals). It is pointed out that, even in the written submissions filed by the assessee before the Commissioner (Appeals) after personal hearing, no contention was raised to the effect that the aforesaid amounts of service tax had not been recovered from the clients. According to the learned SDR, the view taken by the learned Commissioner (Appeals) in this regard is justifiable. The learned SDR has also adverted to the question whether the activity undertaken by the assessee for the benefit of oil marketing companies during the material period was exigible to service tax under the heading 'Clearing & Fo....
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....rvice tax amounts of Rs.15,46,726/- and Rs.10,75,241/- for 'storage service' from certain customers, viz., M/s.Reliance Industries Ltd., and M/s.Numaligarh Refineries Ltd., and that the amounts of service tax are appearing as outstanding in the books of accounts of the appellant as on 31/03/11. On the basis of this certificate of the Chartered Accountant, the learned Consultant for the appellant submits that refund claim of service tax to the extent of Rs.26,21,967/- (sum of the aforesaid amounts) cannot be rejected on the ground of unjust enrichment. In other words, the learned Consultant for the appellant would like to restrict the refund claim to Rs.26,21,967/-. 7. We have given careful consideration to the submissions.&n....
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....ng to the effect that the claim for refund of Rs.1,97,66,972/- paid as service tax during the period from 28/12/99 to 25/06/2001 was filed after the prescribed time limit. This finding of the original authority has been upheld by the Commissioner (Appeals). In the present appeal of the assessee, there is no attempt to substantiate their contention that the claim for refund of the above amount paid during 28/12/99 to 25/06/2001 was not time-barred under Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. The only plea made by the appellant in this connection is that the payment of service tax was made under protest and, therefore, the time bar provisions are not applicable. We are not in a position to b....
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....im for refund of service tax of Rs.1,97,66,972/- is therefore liable to be sustained on the ground of time-bar. 9. As regards unjust enrichment, we have found a clear finding of the Assistant Commissioner, which reads thus 'the remaining amount out of the present claims viz., Rs.1,20,49,261/- and Rs.53,88,179/-, I found that the assessee have already recovered value of taxable services and amount of Service Tax paid thereon from their clients during the period in question'. 10. Against this clear finding of the original authority, the appellant did not attempt to build-up any challenge in their appeal preferred to the Commissioner (Appeals). What they stated in that appeal was that 'the tax had not been passed to their c....