AI Drafter 
TaxTMI 
TaxTMI 
2018 (7) TMI 855
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....ce tax department for providing services under the category of 'Tour Operator Service' i.e. services of point to point passenger Transport Service from one boarding place to another in a vehicle having a contract carriage permit. They have filed a refund claim of Rs. 2,20,78,450/- on 07.10.2011 pursuant to Section 75 of the Finance Act, 2011 read with Notification No. 20/2009-ST dated 07.07.2009. Out of the said refund claim, the adjudicating authority had though sanctioned an amount of Rs. 2,07,92,047/-, but transferred the same to Consumer Welfare Fund, in terms of Section 12C of the CEA, 1944, as made applicable to the service tax matters, and rejected service tax refund of Rs. 12,86,403/-. Aggrieved by the said order, the respondent fil....
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....elf cannot be a ground to conclude that the burden of service tax has been passed on to the passengers/customers. He has vehemently argued that the fees collected from the passengers remained constant before and after the exemption, except some marginal increase to offset the increase in the fuel/disel price. In support of his contention, the Ld. Chartered Accountant referred to the judgement of the Hon'ble Gujarat High Court in the case of Commissioner of Central Excise & Customs vs. Dhariwal Industries Ltd. - 2014 (6) TMI 308 (Guj.) and the judgement of Andhra Pradesh High Court in the case of Commissioner of Central Excise, Hyderabad-III vs. Bhadrachalam Paper Boards Ltd. - 2004 (3) TMI 83-ANDHRA PRADESH HIGH COURT. 6. In his rejoinde....
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.... maintained and produced by ULAI for the purpose of our review and verification 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 de....
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.... due to various factors. Hence, even on merits, the respondent has failed to make out a case for refund. Since relevant factors stated above have not been examined by the authorities below, we do not find merit in the contention of the respondent that this Court should not interfere under Article 136 of the Constitution in view of the concurrent finding of fact. In view of this, the argument of learned C.A. does not hold much water. 4.3 In this regard, learned AR has relied on the decision of the Tribunal in the case of HPCL - 2015 (317) ELT 379 = 2014-TIOL-658-CESTAT-MUM, where in para 6.7 following has been observed:- 6.7 In the present case, it is an admitted position that the refund amount due was not reflected in the boo....
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....y 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 Section 27 of the Act. Having passed on the burden of tax to another person, directly or indirectly, it would clearly be a case of unjust enrichment if the importer/seller is then able to get refund of the duty paid from the Government notwithstanding the incidence of tax having already been passed on to the purchaser. 4.5 In view of above, we find that the appellant has discharged this am....