2012 (11) TMI 924

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....dent/job worker cannot be held to be taxable service provider covered under the definition of Business Auxiliary Service as their activity amounts to manufacture in view of Section 2(f) of Central Excise Act, 1944 (for short, 'the Act'). Therefore, the respondent sought the refund of the aforesaid amount which was wrongly paid by them under Business Auxiliary Service. The respondent/assessee contended that the activity of manufacture from the raw materials supplied by M/s. Alcock Ashdown (Gujarat) Limited (for short the M/s. Alcock) was not a taxable service but it amounts to manufacture as defined under Section 2(f) of the Act. 2. The Assistant Commissioner issued deficiency memo on 16.5.2008 which was clarified by the respondent and th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ited to consumer welfare fund. The Assistant Commissioner by his order dated 3.12.2008 accepted that the respondent is not covered under business auxiliary service as their activity amounted to manufacture and sanctioned the refund, but he transferred the refund to the consumer welfare fund on the ground that the appellant has realized the payment of their invoice dated 21.02.2007 under which they had shown Service Tax of Rs. 16,63,451/-. It was also held that since respondents have realized the service tax and the duty burden had been passed on, therefore, the refund was hit by bar of unjust enrichment. 6. The respondent filed an appeal before the Commissioner (Appeals), Central Excise and Customs, Rajkot. Before the Commissioner (Appea....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... 09.01.2009 for Rs. 16,63,451/- wherein the Service Tax wrongly collected vide Debit Note No.: MIPL/AAGL/Y-251-02A/2006 dated 21.02.2007 was credited into the books of account. 9. Further, on perusal of the Chartered Accountant Certificate and the documents submitted it projects that following entries must have been passed in the books of account of the appellants.   Date Description Debit Credit Dr/Cr Balance   11.08.2006 Payment received from M/s Alcock Ashdown Gujarat Limited   50,00,0001  Cr 50,00,000   12.10.2006      50,00,0001 Cr  1,00,00,000   22.12.2006     37,44,5001 Cr  1,37,44,50....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ock Ashdown Gujarat Limited herein they have stated that they have not taken the credit of the said account as input credit. The Cenvat Credit Rules, 2004 clearly prohibits such credit for which no payment is made. 12. In view of above discussions and findings, I find the impugned order sanctioning the refund and transfer to Consumer Welfare Fund is not justified. The appellants have not attracted the bar of unjust enrichment and they are liable for refund of amount." 11. Once the M/s. Alcock Ashdown (Gujarat) themselves issued certificate that the amount of service tax was not received by the respondent from their customers then there was no question of undue enrichment by the respondent. In our opinion the Commissioner (Appeals) as ....