TaxTMI 
TaxTMI 
2023 (7) TMI 1123
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.... M/s. BSNL dated 10.09.2002 and dated 24.03.2003 wherein the short payment of service tax amounting to Rs. 3.36 Crores has been alleged. 2. The above referred two show cause notices were confirmed by the Adjudicating Authority against which the respondent assessee M/s. BSNL made an appeal before the Commissioner (Appeals) which also failed. The respondent assessee made an appeal before this Tribunal against the order of the Commissioner (Appeals) and in the stay order No. S/492/WZB/AHD/2008 dated 27.05.2008, this Tribunal observed that since out of the total confirmed demand of Rs. 3.36 Crores, the respondent assessee has already deposited an amount of Rs. 2.27 Crores during the process of enquiry by the department and before issuing the above mentioned two show cause notices. The CESTAT treated this amount of Rs. 2.27 Crores as deposit. This Tribunal vide its Final Order No. A/2629/WZB/AHD/08 dated 01.12.2008 set aside the above order in appeal and thus the demand of service tax amounting to Rs. 3.36 Crores was also set aside and it was ordered that appellant will be entitled for the consequential relief. 3. The original sanctioning authority namely Assistant Commissioner Servic....
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....). In this case Hon'ble Tribunal held that if the assessee is able to show by way of a CA's certification from the customer that the incident of service tax has not been passed, then they are eligible for refund and in the case of CCE Jaipur-I Vs Laxmi Finance Co. in 2006 (3) STR 25 (Tri.-Del) Hon'ble Tribunal has held that non passing of incidence of tax can be verified with reference to records of certification of Chartered Accountant. In the present case the entry in the J.S register along with Chartered Accountant certificate proves that unjust enrichment is not applicable." 4. The department feeling aggrieved by the Commissioner (Appeals) order, reviewed the same and are before us in appeal. 5. We have heard both sides. We feel that following three questions need to be answered by us in this regard. (i) Whether the amount of Rs. 2.37 crores deposited by the Respondent assessee M/s. BSNL before issuing the show cause notice towards the alleged short payment of the service tax which was also considered as pre-deposit at the time of admission of the appeal by this Tribunal. (ii) Whether the principle of unjust enrichment are present in this particular matter or not. 5.1 It....
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....15 (39) S.T.R. 190 (Mad.) = 2015 (320) E.L.T. 703 (Mad.) of Division Bench of Madras High Court had an occasion to look into a similar dispute. Therein also payment was made during investigation by Assessee. Subsequently, show cause notice was issued and Assessing Officer passed order adjudicating liability of Central Excise and amount deposited by Assessee was appropriated against such determined liability. Subsequently, in appeal, assessment order was set aside and question of refund arose. An argument was raised that unless Assessee proves that he has not passed on incidence of duty to any other person, refund cannot be allowed. Court held, it is not a case of refund of duty but return of pre-deposit made by Assessee at the time of investigation under protest. Similarly in the present case, as is evident from the records, it is not a case of refund of duty. It is a pre-deposit made under protest at the time of investigation, as has been recorded in original proceedings itself. Court has said as under :- "There are also very many judgments of various Courts, which have also reiterated the same principles that in case any amount is deposited during the pendency of adjudication p....
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....t did not spell out the reasons for dismissal, it can well be constructed in the light of its earlier judgment in the case of Suvidhe Ltd. and Mahavir Aluminium that the law relating to refund of pre-deposit has become final. In order to attain uniformity and to regulate such refunds it is clarified that refund applications under Section 11B(1) of the Central Excise Act, 1944 or under Section 27(1) of the Customs Act, 1962 need not be insisted upon. 3. A simple letter from the person who has made such deposit, requesting the return of the amount, along with an attested Xerox copy of the order-in-appeal or CEGAT order consequent to which the deposit made becomes returnable and an attested Xerox copy of the Challan in Form TR6 evidencing the payment of the amount of such deposit, addressed to the concerned Assistant/Deputy Commissioner of Central Excise or Customs, as the case may be, will suffice for the purpose. All pending refund applications already made under the relevant provisions of the Indirect Tax enactments for return of such deposits and which are pending with the authorities will also be treated as simple letters asking for return of the deposits, and will be proces....
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....lected a tax from a person, and, even if there is no specific provision, still is liable to refund tax along with interest. Similar view was taken in Kuil Fireworks v. CCE - 1997 (95) E.L.T. 3 (S.C.) and CCE, Hyderabad v. ITC - 2005 (179) E.L.T. 15 (S.C.). 32. Recently also in Union of India v. Tata SSL Ltd. - 2007 (218) E.L.T. 493 (S.C.), Court held that pre-deposit is refundable along with interest and for that purpose, relied on its decision in Commissioner of Central Excise, Hyderabad v. I.T.C. Ltd. (supra) and Central Board of Excise and Customs' Circular dated 8-12-2004. 33. In a recent judgment of Gujarat High Court in Hindustan Coca-Cola Beverages Pvt. Ltd. v. UOI - 2015 (324) E.L.T. 299 (Guj.), an argument was raised, if there is no provision for payment of interest, the same shall not be payable. Court in Paras 5.4 and 6 said as under :- The "5.4 contention to the effect that no interest is payable because there is no provision of interest under the scheme of the Act is also thoroughly misconceived and misplaced. When the Department acts illegally and not as per the scheme of the Act, the interest on such refund can never be provided for under the Scheme of the Act.....
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....nt collected without authority of law. That was a case of 'Service Tax' and Court said as under :- "Though under Finance Act, 1994 such service tax was payable by virtue of notification, they were not liable to pay, as there was exemption to pay such tax because of the nature of the institution for which they have made construction and rendered services. In other words, if the respondent had not paid those amounts, the authority could not have demanded the petitioner to make such payment. In other words, authority lacked authority to leavey and collect such service tax. In case, the department were to demand such payments, petitioner could have challenged it as unconstitutional and without authority of law. If we look at the converse, we find mere payment of amount, would not authorize the department to regularize such payment. When once the department had no authority to demand service tax from the respondent because of its circular dated 17-9-2004, the payment made by the respondent company would not partake the character of "service tax" liable to be paid by them. Therefore, mere payment made by the respondent will neither validate the nature of payment nor the nature of trans....