TaxTMI 
TaxTMI 
2022 (3) TMI 695
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....encies. On 24.12.2018 appellant filed a refund of Rs. 17,26,197/-, the amount of service tax paid for the period from July 2012 to June 2017. The department observed that the said refund claim is in relation to wrong payment of service tax which they have claimed to be exempted vide Notification No. 31/2012 - ST dated 20th June 2012. Accordingly, show cause notice bearing no. 495 dated 04.02.2019 was served upon the appellant proposing the rejection of the said refund. The said proposal was initially rejected vide Order-in-Original No. 916 dated 20.03.2019. The appeal thereof has been rejected vide the order under challenge. Accordingly, the appellant is before this Tribunal. 2. I have heard Shri Pulkit Kapoor, learned C.A. for the appella....
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....ndings in para 5.2 and 5.4 of the order under challenge. It is submitted that since the benefit of exemption was claimed under a notification where certain condition were prescribed, Commissioner (Appeals) has committed no error while rejecting the refund claim on the ground of non-compliance of the said conditions. Further, there is no denial of the fact that the element of service tax has been passed on to the customers, by the appellant. Impressing upon common infirmity in the order under challenge the appeal is prayed to be dismissed. 5.1 After hearing the rival contentions and perusing the records, the observations and findings are as follows: There is no denial that appellant is entitled to exemption in terms to Notification No. 31/....
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....id by the exporter, the failure to notify the Assistant/Deputy Commissioner by filing form EXP 1 and non submission of return in form EXP 2 as are otherwise required under the exemption notification, cannot lead to denial of the substantial benefit of refund. The said lapse is merely a procedural one and the substantial benefit cannot be denied on technical grounds. The Principle Bench of the Tribunal also in the case of HEG Limited Vs. Commissioner of Customs, C.Ex. & S.T., Bhopal reported in 2019 (29) G.S.T.L. 730 (Tri. - Del.) has held that once the compliance of all the conditions of notification are undisputed, delay in the said compliance, being merely a procedural lapse cannot be made the basis to deny the substantial benefit as that....
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....efund of service tax paid is not sanctioned and is not credited to the appellant's account it cannot be recorded by the appellant as income, it merely being an expense. Presumption that the entries in profit and loss account showing the payment of service tax as expense is the case of unjust enrichment is held to be a wrong presumption. Hon'ble Bombay High Court, in the case of Commissioner of Central Excise, Pune-I Vs. Sandvik Asia Ltd. reported in 2015 (323) E.L.T. 431 (Bom.), has clarified that presumption of passing on incidence of duty is absolutely immaterial and irrelevant. Hon'ble Bombay High Court clarified that even if the amount has been shown as 'expenses' in accounts, it does not mean that the burden has been passed on to the c....