2013 (5) TMI 927

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....kwad, Advocate, for the Appellant. Shri D.D. Joshi, Supdt. (AR), for the Respondent. ORDER [Order per : P.R. Chandrasekharan, Member (T)]. - The appeal is directed against Order-in-Appeal No. PII/BKS/108/2006, dated 19-4-2006 passed by Commissioner of Central Excise (Appeals), Pune. 2. The appellant, M/s. Ghatge Patil Industries Ltd., are manufacturers of excisable goods falling u....

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....mmissioner vide order dated 22-3-2006 on two grounds, namely, one the appellant is liable to pay service tax under the category of "banking and financial services" and second since the appellant had shown the service tax paid under heading 'expenses' they have failed to cross the bar of unjust enrichment. On appeal by the appellant, the ld. appellate authority rejected the appeal on the very same ....

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....he provisions of Section 12B of the Central Excise Act, 1944, which provides for a presumption that incidence of duty has been passed on to the buyer of the goods unless the assessee proves the contrary. Merely because service tax paid under protest is shown as expenditure, it cannot be presumed that the appellant has passed on the incidence of duty and accordingly, he prays for grant of stay. ....

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....ree with the plea of the appellant that the service tax is not payable on such leasing. The decisions of this Tribunal relied upon by the appellant (cited supra) also supports this view. Coming to the second issue whether the appellant has crossed the bar of unjust enrichment or not, proviso to Section 11B of the Central Excise Act, 1944, read with Section 83 of the Finance Act, 1994 specifically ....