TaxTMI 
TaxTMI 
2007 (9) TMI 120
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....hem with Kerala Venture Capital Fund received Rs. 40/- lakh as management fee in advance in the year 2003-2004. Therefore, Service Tax at the rate of 5% was paid in advance by the appellant. The Service Tax amounted to Rs. 2/- lakh. Before the conclusion of the financial year, on March 25th 2003-2004, the appellant entered into a supplementary agreement with the Kerala Venture Capital Fund. The effect of the agreement is that the management fee would be based on the actual expenditure and whatever fee collected in excess would be refunded to the appellant by the Kerala Venture Capital Fund (P) Ltd. In terms of the supplementary agreement, effective from 1- 4-2003, the management fund was reduced to Rs. 28/- lakh. Consequently, the appellant....
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....that only in terms of the original agreement which was entered in the year 2000, the supplementary agreement was made and in terms of the supplementary agreement, the appellants are rightly entitled for the refund of the excess Service Tax paid. He also urged that the Chartered Accountant has certified that the excess tax has been refunded to the recipient of the service. He invited our attention to the certificate wherein the Chartered Accountant has stated that the excess amount collected has been refunded to the service recipient on 31-3-2004 and 27-10-2004 respectively. He also relied on the decision of the Tribunal in the case of Shiva Analyticals (I) Ltd. v. Commissioner of Service Tax, Bangalore - 2007 (7) S.T.R. 35 (Tri.-Bang.) wher....
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.... by the assessee to the customers is not admissible. He urged the point that this decision of the Sangam Processors case has been followed in various decisions of the Tribunal. Further, the Sangam Processors decision has been upheld by the Hon'ble Apex Court. He invited our attention to the decision of the Lager Bench in the case of S. Kumar's Ltd. v. CCE, Indore - 2003 (153) E.L.T. 217 (Tri.-LB) wherein the Larger Bench has held in the context of the Sangam Processors decision that when a civil appeal is dismissed even though without assigning reasons it will have an effect of binding precedent unlike the case of dismissal of a special leave petition. In the case of Sangam Processors Ltd., the assessee approached the Hon'ble Apex Court by ....
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.... accepted. 4.2 On a very careful consideration of the issue, we find that the appellant claimed the refund of Rs. 60,000/- being the excess Service Tax paid. How ever, the Original Authority issued a show cause notice for rejecting the refund claim on the grounds of unjust enrichment. The show cause notice was issued on 27-7-2004 and the appellants had filed a reply to the show cause notice on 10-8-2004. The personal hearing was granted on 15-9-2004. It is seen from the records that the Chartered Accountant had certified that the excess tax was refunded only on 27-10-2004. That means when they filed the refund claim and also even at the time of the personal hearing, the appellants had not passed on the tax burden to the service recipient....