2007 (4) TMI 697

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....e refund claim filed by the respondent of Service Tax paid by them on services received from goods transport operators. The said amount was paid by the respondents on 14-11-2003 "under protest". The respondent's contention before the lower authorities was that they are not liable to pay the amount of service tax as a recipient of goods transport operators on the ground that they are small scale industries. Notification No. 43/97-ST dt. 5-11-1997 granted exemption to small scale industries from payment of service tax as recipient of services of goods transport operator. The perusal of the records shows that this contention was accepted by the lower authorities without being contested by the Revenue in higher forum. If that be so, service tax....

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....In such a situation, the ratio laid down by Tribunal in the case of Silwester Textile Pvt. Ltd. v. CCE, 2003 (156) E.L.T. 216 and Panjab Beverages Pvt. Ltd. v. CCE, 2000 (118) E.L.T. 500 is applicable to the case. The Tribunal decision in the case of Sunbeam Auto Ltd. v. CCE, Delhi-III, 2005 (185) E.L.T. 297 is also applicable wherein it is held that merely because the amount is mentioned as sales expenses, the bar of unjust enrichment is not applicable; that even if the assessee is keeping such amount in their Account as sales expenses and deducted the same out of their profits, the refund claim is not deniable. Further I find that the appellants had also produced before the adjudicating authority a C.A. Certificate dated 14-12-2004 from M....

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....ome to a categorical conclusion that respondent has not passed on burden of service tax to the customers and nor they have recovered the amount from the transporters. The certificate also categorically states that the respondent had borne the incidence of service tax. Further, I find that the issue in this case is squarely covered by the order of the Tribunal in the case of Sunbeam Auto Ltd. v. CCE, Delhi-III reported as 2005 (185) E.L.T. 297. The Tribunal in that case was dealing with the issue as is in the current case and on the issue of the amount of service tax paid being debited to the account of sale expenses, the Tribunal held as under : "Further the appellant is only mentioning this amount in sale expense. As the amount in....