AI Drafter 
TaxTMI 
TaxTMI 
2018 (4) TMI 168
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts 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, rejected their appeals. Hence, the present appeals. 3. The Appellants M/s Tanna Travels Agency and M/s Rajdhani Travels are represented by the Advocates Shri S.J. Vyas and other two Appellants neither appeared in the past, nor sought adjournment. Since, the issue is common and the Order-in-Appeal is also common, accordingly, all these appeals are taken up together for disposal. 4. Ld. Advocate Shri S. J. Vyas for the appellants vehemently argued that in the tickets/invoices issued by the appellants to the passengers, the service tax paid was not separately shown, hence, not recovered from the customers. Also, the price charged before and after the issuance of the exemption Notification remained the same. Thus, the incidence of service tax claimed as refund for the relevant period has not been passed on to others. In support of the clai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l Excise, Jalandhar 2007 (210) ELT 529 (Tri.-Del.), and also a judgement of the Hon'ble Gujarat High Court in the case of Mangal Textile Mills Ltd. 2004 (171) ELT 160 (Guj.). 6. Ld. AR for the Revenue on the other hand has submitted that the service tax paid by the appellants, undisputedly, shown as expenditure in their books of accounts which means that the same has entered into cost of the services provided and accordingly recovered from the customers. Further, he has submitted that merely because 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on and based on the information furnished to us, we certify that ULAI has not recovered the amount of Service Tax (Incl. cess) and interest paid as shown in the above table from its customers or any other person." It is seen that C.A. has made a blind observation regarding the non recovery of Service Tax and interest from the customers or any other person. If the said amount has not been recovered from anybody then the same should appeal somewhere in the Balance-sheet as amount receivable from Govt. The fact that it has been shown against expenditure itself 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 decision of the Tribunal in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Photographic India Ltd. [2004 (166) ELT 3 (SC)] =2004-TIOL-27-SC-CX, wherein it was held 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 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 purchaser of the finished product or that the imported goods are sold as such with the incidence of tax being passed on to the buyer. In either case the principle of unjust enrichment will apply and the person responsible for paying the import duty would not be entitled to get the refund because of the plain language of Sect....