2024 (3) TMI 1229

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....at when such hiring out of the equipments and VAT/Sales Tax is charged by the respective State Government, no Service Tax can be leviable. After this, the client ITD-ITD CEM JV had sent a letter to the Appellant stating that the Appellants have charged Service Tax which is not chargable by them and accordingly the client sought refund of the same. The Appellant has issued Credit Notes for such Service Tax initially charged on their clients. The Appellants then approached the Department to claim the refund of Service Tax initially paid by them. The Department took the view that the Appellant has not discharged onus of showing that unjust enrichment clause is not applicable in that case. After sanctioning the refund, the amount in question wa....

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....ived by the client and accounted by them in their Books of account. 3. On going through this letter as well as the statement shown by the Ld. Consultant towards the Credit Notes issued, we find that only a part of the Credit Notes have been acknowledged in this particular letter. The Consultant submits that there are three more letters of this kind which have not been enclosed with the Appeal Papers. If all their letters are taken up together, it would clarify that they have returned the entire Service Tax to their clients by way of Credit Notes. In view of these submissions, he prays that the present Appeal may be allowed. 4. The Learned AR submits that the Appellant has not conclusively prove that the Service Tax has not been passed....

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....d, the case law of Addison deals with situation wherein assessable value itself has undergone change in view of the Credit Note subsequently issued on account of any trade discount or turnover discount. In such cases, as per Addison Supreme Court Judgment, since the person who has initially bought the goods would have already charged the full amount on the end customer, if subsequent discount is granted to the person, there is no possibility for that discount to be passed on the end customer. Because of this reason, the Supreme Court has held that unjust enrichment clause will be applicable and no refund can be granted in that case. 9. In this case, the situation is totally different. First of all the issue is that of Service Tax being p....