TaxTMI 
TaxTMI 
TaxTMI 
2017 (10) TMI 664
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....llowed of 15% on the gross bill irrespective of the discount allowed to the advertisements. It is contended by the respondent that the tax is payable on the gross amount actually charged from the client i.e after discount. 2 There were two refund claims in the sum of Rs. 1,14,060 and Rs. 3,67,935/respectively on the same grounds. Show cause notices were issued to the respondent. In the show cause notices, the allegation was that the respondent has failed to furnish documents to establish that the amount of service tax for which the refund is claimed has been collected by the respondent from its clients and that incidence of such tax has not been passed on to any other person. 3 On the basis of the show cause notices, adjudication was made....
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....entral Excise) Service Tax, Mumbai on the ground that refund claim was sanctioned erroneously. Accordingly, adjudication was made by the Commissioner of Central Excise on the said show cause notices. By the order dated 4th October 2002, the Commissioner held that both the refund claims have been erroneously allowed. The Commissioner recorded the following finding of fact : "In the present case, the assessee has not amended/rectified the grossed bill or issued a revised bill before payment of service tax. Subsequently reimbursement of service tax does not in any way change the position that the assessee passed on the burden excess of service tax charged by them to their client. No proof,as discussed earlier, is shown by them to prove that ....
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....een passed by him to any other person. He invited our attention to the findings recorded by the Appellate Tribunal and submitted that there is no finding recorded by the Appellate Tribunal that the respondent has discharged the burden on him. He would, therefore, submit that the impugned Judgment and Order which is patently illegal deserves to be set aside. None appears for the respondent. 9 We have carefully considered the submissions. Firstly, it will be necessary to advert to the decision of the Apex Court in the case of Commissioner of Central Excise, Madras vs. Addison & Co.Limited (supra). Paragraph 19 of the said decision reads thus: "19 The since qua non for a claim for refund as contemplated in Section 11B of the Act is that the....
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....e buyer which is not restricted to the first buyer from the manufacturer. The buyer mentioned in the above Clause can be a buyer downstream as well. While dealing with absence of a provision for refund to the consumer in the rules this Court in Mafatlal Industries v. Union of India (supra) held as follows: "98 A major attack is mounted by the learned counsel for petitioners appellants on Section 11B and its allied provisions on the ground that real purpose behind them was not to benefit the consumers by refusing refund to manufacturers (on the ground of passing on the burden) but only to enable the Government to retain the illegally collected taxes. It is suggested that the creation of the Consumer Welfare Fund is a mere pretence and not....
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....e for refund of duty to the person who has actually borne the burden. There is no vice in the relevant provisions of the Act. Rules cannot be relied upon to impugn the validity of an enactment, which must stand or fall on its own strength. The defect in the Rules, assuming that there is any, can always be corrected if the experience warrants it. The Court too may indicate the modifications needed in the Rules. The Government is always prepared to make the appropriate changes in the Rules since it views the process as a "trial and error" method - says Shri Parasaran." (underlines supplied) 10 It is in the light of the law laid down by the Apex Court that the merits of the appeal will have to be examined. The case made out by the respond....
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....ter discount. The only other finding recorded by the Appellate Tribunal is that the respondent has admitted that service tax is paid to its customers. This finding is based on the credit notes issued by the respondent to M/s.Emami Limited. There is no finding recorded by the Appellate Tribunal that M/s.Emami Limited did not pass on incidence of service tax on the 15% amount to its customers or buyers of the products. The burden was on the respondent to establish that M/s.Emami has not passed on the incidence of service tax to any other person including its customers or purchasers of the products. Thus, even going by the finding of fact recorded by the Appellate Tribunal, in paragraph 5 and the finding of fact recorded by the Deputy Commissi....