TaxTMI 
TaxTMI 
2022 (3) TMI 106
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Complex Near Bytco Point, Nashik Road Maharashtra 422101, under Section 11B of Central Excise Act, 1944, as made applicable to service tax, matters as per Section 83 of Finance Act, 1994 on the grounds that the same is barred by limitation of time and also hit by the clause of unjust enrichment." 2.1 On the basis of an investigation, it was noticed that the appellant was providing "Business Support service" and "Cleaning agency service". Accordingly, a Show Cause Notice was issued by Joint Commissioner for demand of Service Tax of Rs. 41,68,501/-. The Joint Commissioner finally passed Order-in Original No. 84/JC(Adj)/2009 dated 31.12.2009 vide F.No.84/JC(ADJ)/2009 confirming Rs. 37,32,373/- with interest and appropriated Rs. 5,61,734/- already paid by the appellant. Against the said OIO, the appellant appealed to the Commissioner (Appeals) who passed the Order in Appeal vide No. AKP/251/NSK/2010 dated 31.08.2010 wherein the appellate authority confirmed Rs. 10,46,403/- only and dropped the remaining demand. Both the appellant and the revenue filed appeals before CESTAT. CESTAT issued an order (Final Order No. A/2585-2586/15/STB dated 05.08.2015) rejecting both the appeals and u....
X X X X Extracts X X X X
X X X X Extracts X X X X
..../03/2020. 11 Date of Hearing: 17.03.2020 Adjourned due to pandemic condition 12 Date of Hearing: 01.03.2021 In view of joint request for an adjournment, the matter is adjourned to 07/04/2021. 13 Date of Hearing: 07.04.2021 Learned Advocate sought Adjournment as they have to receive instruction from the client. . Adjourned to 07/05/2021 14 Date of Hearing: 07.05.2021 Adjourned due to pandemic conditions 15 Date of Hearing: 06.08.2021 Matter is adjourned to 23/09/2021. 16 Date of Hearing: 23.09.2021 None appeared for the applicant. Heard the ld. AR for Revenue. - 2. There is a delay of 89 days in filing appeal before the Tribunal. The reason explained in the Miscellaneous Application seems reasonable. Accordingly, in the interest of justice, the delay in filing the appeal is condoned. Appeal to come up for hearing in due course of time 17 Date of Hearing: 22.10.2021 None for appellant. Advocate on record has no brief. Adjourned to 15th December 2021. Registry to issue notice to appellant. 18 Date of Hearing: 15.12.2021 Appellant is absent. No one represented it. Learned Authorised Representative Mr. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as clearly overlooked the facts and submission, without confirming the factual position of delivery of the order rejected on the basis the date of the order. The appellant has submitted the CA certificate for unjust enrichment. The appellant has not collected the Service tax from the Service recipient, he has paid from own pocket, still he has rejected the appeal on unjust enrichment ground also. 2.2 The impugned order has been passed by the Ld. Commissioner without application of mind and without appreciating the facts. 2.3 Page no 18 of appeal memo missing from the appeal file of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. Tlue "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi judicial performance." 2.4 Thus, the impugned order being a non speaking order and not on factual and has been passed in gross violation of principles of equity, fair play and natural justice. Therefore, the impugned order is liable to be set aside on this ground alone. 3. Brief facts - 3.1 The appellant are Partnership firm (hereinafte....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 4.3 The Appellant submit that they are relying on the ratio of following Judgements 4.3.1 Commissioner Of C. Ex. & Service Tax, Bhavnagar Versus Hk Dave Ltd. 2015 (38) S.T.R. 77 (Tri. - Ahmd.) 4.3.2 Behari Dye ChemPvt. Ltd. Versus C.C.E. (Appeals-Ii), Bangalore 2011 (22) S.T.R. 253 (Tri. - Bang.) 4.3.3 Itel Industries Ltd. Versus Commissioner Of Central Excise, Calicut 2014 (301) E.L.T. 288 (Ker.) 4.3.4 KunjBehari Dye Chem Private Limited v. CCE (Appeal II), Bangalore 2011 (22) S.T.R. 253 (T) = 2009 (241) E,LT. 84 (Tri. Bang.) 4.3.5 Gujarat State Fertilizers & Chem. Ltd. v. CCE, Vadodara - 2005 (186) E.L.T. 607 (Tri. - Mumbai) 4.3.6 Konark Cylinders v. CCE, BBSR - 2002 (144) E.L.T. 454 (Tri-Kolkata) 4.3.7 Nelco Limited v. UOI - 2002 (144) E.L.T. 56 (Bom.) 4.3.8 CCE, Chennai-III v. Consul Consolidated P. Ltd. - 2002 (141) E.L.T. 792 (Tri. - Chennai) 4.3.9 Winco Limited v. UOI - 1989 (43) E.L.T. 628 (All.)." 5 The appellant crave leave to add, alter, amend and/or rescind any of the above submissions at the time of or before the personal hearing. 6 The appellant crave leave to r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lized. The burden of this amount should have been adjusted somewhere. 35. Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. v. UOI - reported in 1997 (89) E.L.T. 247 (S.C.) observed "no one will ordinarily pass on less excise duty than what is exigible and payable. A manufacturer may dip into his profits but would not further dip in the excise duty component.... A manufacturer, who has not passed on the duty, can always prove that fact and if it is found that duty was not leviable on the transaction, he will get back the duty paid. Ordinarily speaking, no manufacturer would take the risk of not passing on the burden of duty. It would not be an exaggerating to say that whenever a manufacturer entertains a doubt, he would pass on the duty rather than not passing it on." 36. In case of Hindustan Petroleum Corporation Ltd. Vs. CCE, Mumbai-II reported at 2015(317) ELT 379 (Tri. Mum), the tribunal observed that when refund amount due is not reflected in the books of account as claims receivable', and same was treated as expenditure, the claimant cannot be said to have passed the test of unjust enrichment. The relevant para of the judgment is....