TaxTMI 
TaxTMI 
2018 (4) TMI 168
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....able services under the category of Tour Operator Service during the relevant period. By virtue of retrospective effect to the exemption Notification 20/2009-ST dated 07.07.2009 read with corrigendum dated 31.08.2009, under Section 75 of the Finance Act, 2011, the tax paid during the relevant period i.e. from 1.4.2000 to 6.7.2009 became admissible as refund to the appellants. Consequently, the appellants filed refund claims with the department, within the period stipulated under the Finance Act,2011, which though sanctioned, but, was transferred to the consumer welfare fund on the ground of unjust enrichment. Aggrieved by the orders of the Adjudicating Authority, the appellants filed appeals before the Ld. Commissioner (Appeals), who inturn....
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....& General) 2017 (48) STR 225 (Del.), Commissioner of Central Excise & Customs, Guntur vs. Crane Betel Nut Powder Works 2009 (15) STR 527 (Tri.-Bang.), Commissioner of Central Excise, Surat-I vs. Shrinathji Dyg. 2011 (24) STR 108 (Tri.-Ahmd.), Commissioner of Customs & Central Excise, Guntur vs. Crane Betel Nut Powder Works 2013 (29) STR 85 (A.P.), Equinox Solution Ltd. Vs. Commissioner of Customs, Ahmedabad 2017 (357) ELT 1041 (Tri.-Ahmd.), Commissioner of Central Excise & Customs, Guntur vs. Crane Betel Nut Powder Works 2011 (274) ELT 113 (Tri.-Bang.) and Commissioner of Central Excise-III vs. Nicco Corporation Ltd. 2017 (346) ELT 556 (Cal.). Further, he has submitted that the present refund arose due to the retrospective legislation, henc....
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....ause the price before and after the exemption notification, remained the same, it could not be construed that the incidence of duty has not been passed on to others. In support, he has referred to the judgement of this Tribunal in the case of United Liner Agencies of India P Ltd. Vs. CST-Mumbai-II 2017-TIOL-2961-CESTAT-MUM, M/s Hindustan Petroleum Corporation Ltd. Vs. Commissioner of Central Excise, Mumbai-II 2014-TIOL-658-CESTAT-MUM and CCE, Mumbai-II vs. Allied Photographics India Ltd. 2004 (166) ELT 3 (SC), The Ld. AR for the Revenue further referring to the Chartered Accountant s Certificate submitted that the certificate itself indicates that the amount of service tax paid is built into the price as a cost of service, therefore, the bu....
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....ntant s Certificate who certified that the amount of service tax paid was not recovered from the customers observing that the amount though shown as expenditure in their profit and loss account, but the burden of tax has not been passed on to others. The division Bench of Tribunal following the earlier judgment of this Tribunal in the case Hindustan Petroleum Corporation Ltd. Vs. CCE, Mumbai-II 2016-TIOL-658-CESTAT-MUM has observed as follows:- "4.1 The appellants have relied on the C.A. certificate on which no findings have been given by the lower authorities. The Chartered Accountant has given his observations as under:- "On examination and verification of the audited books of accounts, financial statements, records and TR-6 challans ....
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....fund and is not hit by bar of unjust enrichment. 4.2 Learned C.A. had argued that no evidence of any change in the price of service offered by them before and after such absorption of this refund amount against expenditure has been shown to prove that the burden of Service Tax has been passed on to other customers. To counter this argument, learned AR has relied on the decision of Allied Photographics India Ltd. - 2004 (166) ELT 3 (SC) = 2004-TIOL-27-SC-CX, wherein Hon'ble Apex Court has observed as follows:- 18. Before concluding, we may state that uniformity in price before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to....
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....ce before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors". Therefore, in the present case, the appellant HPCL has failed to cross the bar of unjust enrichment also and hence they are not eligible to claim the refund. 4.4 Hon'ble Apex Court in the case of Solar Pesticide (supra) has examined the issue of unjust enrichment and observed as follows:- 20. We are of the opinion that the aforesaid observations would be applicable in the case of captive consumption as well. To claim refund of duty it is immaterial whether the goods imported are used by the importer himself and the duty thereon passed on to the pur....