AI Drafter 
TaxTMI 
TaxTMI 
2017 (7) TMI 298
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....earned Chartered Accountant for the appellant argued that investigations were opened against them and demand of Service Tax raised in respect of warehousing service allegedly provided in respect of abandoned cargo. The said demand of duty was set aside by Tribunal in their own case vide Order No.A/3680/15/STB dated 13.10.2015. Learned C.A. argued that they had consequently filed a refund claim for the Service Tax and interest paid on such services. However, lower authorities have sanctioned the refund claimed but credited the same to the Consumer Welfare Fund on the ground of unjust enrichment. Learned Counsel argued that it is not a case of unjust enrichment as the amount has not been recovered from any client. Learned C.A. argued that the....
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....position, he relied on the following case laws: - (a) Flow Tech Power -2006 (202) ELT 404 (Mad) (b) Cummins India Ltd. - 2008 (221) ELT 525 (Tri-Mum) (c) Ved Textiles Pvt. Ltd. - 2007 (220) ELT 281 (Tri-Mum) (d) BHP Engineers Ltd. - 2006 (206) ELT 1084 (Tri-Del) (e) Kesoram Cement - 2005 (183) ELT 302 (Tri-Bang) 2.2 He further argued that the Service Tax was paid out of proceed of sale of abandoned cargo and therefore neither the buyer nor any other person was debited with the amount of Service Tax, which was paid by the appellant. 3. Learned AR for the Revenue argued that the appellants have discharged Service Tax from net realization made on account of Balance Ground Rent. The balance ground rent is arrived at after c....
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....926/- 45,719/- 2,16,645/- 01.04.2005 -31.03.2006 27.11.2006 1,26,196/- 10,911/- 1,37,107/- 01.04.2006 -31.03.2007 31.3.2007 * 4.12.2007 4,80,235/- 53,857/- 5,34,092/- 01.04.2007 -31.03.2009 Irregular course within dates 15,18,724/- -- 15,18,724/- Total 22,96,081/- 1,10,487/- 24,06,568/- From the said chart, it is apparent that the appellants were paying tax from time to time from 27.11.2006 to 31.3.2009. In fact from the Annexure-A to the show-cause notice, it is seen that the appellants were paying Service Tax from time to time from 26.7.2007 onwards till 18.3.2009 with zero interest. This would mean that they had paid Service Tax on regular basis during this perio....
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....tself indicates that the said amount has been passed on to other customers. The appellants have relied on the decision of Hon'ble High Court of Madras in the case of Flow Tech Power - 2006 (202) ELT 404. It is seen that in the said case, the duty was paid under protest. Moreover the Hon'ble High Court relied on the fact that the price was fixed by Ministry of Agriculture. We find that these facts are clearly distinguishable and therefore, the decision in the case of Flow Tech Power (supra) cannot be applied to the instant case. In this regard, it is seen that learned C.A. has relied on the decisions of the Tribunal in the case of Cummins India (supra), Ved Textile Pvt. Ltd. and BHP Engineers (supra) to assert that even in the circum....
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....ion that the refund amount due was not reflected in the books of account of HPCL as claims receivable. This implies that the duty paid was shown as current expenditure and formed part of the Profit and Loss account of the assessee. Thus if the claimant himself has treated the refund amount due as expenditure and not as claims receivable, the claimant cannot said to have passed the test of unjust enrichment. This is the settled position in law. The appellant has also contended that the appellants goods are sold at prices determined by the Govt. and therefore, it should be presumed that in the absence of a change in price, it should be presumed that the appellant has borne the incidence. Similar argument has been negated by the Hon'ble Ap....