TaxTMI 
TaxTMI 
2007 (9) TMI 187
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....er. The aspect pertaining to merit as well as time bar and unjust enrichment has not been gone into. 2. The learned Counsel submits that the Service Tax had been paid by M/s. Biju Sales Corporation which had collected the amount from them and they had borne the burden of the said amount and had not passed on to another per son. They produced the balance sheet to satisfy their claim. They contended that no Service Tax was leviable on consignment sales obtained prior to 9-7-2004 and Notification No. 13/2003-S.T., dated 20-6-2003 exempted Commission Agents falling under "Business Auxiliary Service" from Service Tax. Therefore, they con tended that they are eligible for the refund claim as the amounts had been paid by them and produced TR-6 ....
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....the lower authorities had decided the issue questioning the locus standi of the appellants. They had not examined the entire issue on the basis of the facts on record. The lower authority has stated that the Department is in no way concerned with the appellant, as they are not the 100% EOU registered with them. The goods on which duty had been recovered by the Department had been manufactured by the appellant. In fact, the appellants had cleared the goods to M/s. Sasken Communication Technologies Ltd. free of duty on the strength of the CT-3 Certificate issued by the jurisdictional superintendent. Thus, there was no irregularity in the clearance of the goods without payment of duty by the appellants. These goods were bonded in the premises ....
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....t that the entire amount of duty, interest and penalties if any, will be deducted from SPCL bills. Further, they had also enclosed a certificate to the effect that the amount of duty along with interest had been remitted by them on behalf of M/s. S.P. Fabricators Pvt. Ltd. From these documents, it is evident that the duty incidence on the impugned goods had been borne by the appellants, who are also the manufacturers of the goods. From the records, it is clear that the appellants had borne the duty burden even though, they are not licencees of the jurisdictional Deputy Commissioner. Hence, it cannot be said that the appellants do not have any locus-standi in filing the refund claim. 3.3 A similar issue was the subject matter before the A....
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....urther, Section 11B was amended in 1991 providing for filing refund claim even by a purchaser. It is evident that a purchaser does not pay Central Excise duty directly to the Department. Yet, when he has borne the burden of Excise duty which is not actually payable, law provides that he can also claim refund from the Department. However, in the present case, the person claiming re fund is the manufacturer who cleared the goods on the strength of CT-3 Certificate issued by the Department and it is also on record that he had borne the burden of duty. In these circumstances, it is not correct to reject the refund claim on grounds of locus standi. We do not want to discuss the other issues. In view of our findings, we set aside the impugned ord....