2019 (11) TMI 566

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....e tax on the same service. An SCN dated 14.09.2007 was issued detailing unjust enrichment provisions in Section 11B as well as on the ground that sub-contractors are liable to pay service tax as well as main contractor. The Assistant Commissioner vide order dated 27.12.2007 held that both main contractor and sub contractor have to pay service tax but kept silent about the issue of unjust enrichment. The appellant filed appeal before the Commissioner (Appeals) against order dated 27.12.2007 wherein by order-in-appeal dated 24.11.2009 the O-I-O passed by the Assistant Commissioner was upheld. The appellant challenging the OIA filed appeal before CESTAT. The CESTAT vide order dated 10.11.2010 remanded the matter for verifying the refund claim ....

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....Builders vs CCE 2013 (12) TMI 1571 CESTAT-AMD. He submits that the Commissioner could not have held against the appellant in respect of unjust enrichment because the issue was considered in the 1st SCN dated 14.09.2007 itself and the appellant as borne the service tax to them as per evidence placed during the adjudicating of the 1st SCN, therefore repeated or reopening of the already settled issue of unjust enrichment is illegal. He also placed on record the CA Certificate dated 23.06.2018 certifying that the appellant has borne the burden of service tax reimbursed to the sub-contractor and they have not collected the amount reimbursed to the sub-contractors from their customers. He further submits that appellant was recipient of service fr....

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.... of the service tax was clearly made as expenditure in the books of the appellant. Even though I agree that merely because the service tax amount was shown as expenses that alone cannot establish that the incidence was passed on. However once the service tax amount is booked as expenditure then the burden to prove that the same was not passed on become heavy on the assessee. In this case no any document clearly show that the incidence was not passed on. Moreover, the appellant is a main contractor and for the entire project they are raising the bills including the service charge to the extent of service provided by the sub contractor to their main client. Therefore, it is clear that the incidence of unjust enrichment has been passed on to t....