TaxTMI 
TaxTMI 
2026 (3) TMI 24
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....ch, 2010. 2. The brief facts are that the appellants are, inter alia, engaged in providing certain services to M/s Ushodaya Enterprises Ltd (Ushodaya for short). These activities were, according to department, falling under the category of Business Auxiliary Service (BAS). The background of the issue is that the appellant had filed refund claim on 22.03.2006 for 'space selling services' and commission received for 'newspaper promotion services'. The entire refund claim was rejected and ultimately, the matter reached the Tribunal, which vide Final Order No.690/2010 dt.05.04.2010 in Appeal No.ST/346/2008, set aside the demand on 'space selling services' and upheld the refund claim to that extent. Subsequent to the said order, the appellant filed refund claim on 29.07.2010 on service tax paid on the services relatable to space selling services amounting to Rs.1,03,08,200/-. The department, however, rejected the said claim on various grounds, including absence of details of tax payment in ST3 return and their having not declared the split between these two services and the amount paid towards space selling services. Additionally, it was also held that they were not able to establish....
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....STAT Mumbai] c) Tag Corporation Vs CGST & CE, Chennai [2023 (12) TMI 564] d) Visaka Industries Ltd Vs CCE [2019 (369) ELT 1575 (Tri-Bang)] e) JK Tyre & Industries Ltd Vs CCT [2020 (3) TMI 368 (Tri-Chennai)] 5. He has also contested that OIOs in respect of both the appeals have travelled beyond the scope of SCN and hence not maintainable relying on the following judgments. a) CC Vs Toyo Engineering India [2006 (201) ELT 513 (SC)] b) CCE, Surat Vs Sun Pharmaceuticals Inds. Ltd [2015 (326) ELT 3 (SC)] c) Reckitt & Coleman Vs CCE [1996 (88) ELT 641 (SC)] 6. Rebutting the grounds taken for rejection and non-quantification of admissible refund, he has submitted that they had provided various documents already to the department including copies of challans evidencing payment of service tax, ST3 returns for the relevant refund period and documentary evidence establishing that the burden of service tax was borne solely by the appellant. They have also submitted a statement prepared by them based on records, which distinctly splits the payments made towards space selling service and newspaper promotion activity. He has also submitte....
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....d therefore, it is also hit by time bar in terms of section 11B of Central Excise Act, 1944, as made applicable to service tax vide section 83 of the Finance Act, 1994. 9. He has also vehemently opposed that merely because credit note has been issued, it is not a conclusive proof that incidence of service tax has not been passed on by the appellant to the ultimate recipient of service and it is also settled position that CA certificate cannot be a substitute for statutory documents including documents specified under section 12A of Central Excise Act like ST3 returns, sales invoices and other like documents. He has relied on the following judgments. a) CC (Exports), Chennai Vs BPL Ltd [2010 (259) ELT 526 (Mad)] b) Pr CCT Vs Sachdev Overseas Fitness Pvt Ltd [2024 (20) CENTAX 30 (Tri-Hyd)] c) Shoppers Stop Ltd Vs CC (Exports), Chennai [2018 (8) GSTL 47 (Mad)] 10. He has also relied on the judgment of Hon'ble Supreme Court in the case of CCE, Madras Vs Addison & Co Ltd [2016 (339) ELT 177 (SC)] in support that credit note, per se, cannot become an evidence that the incidence of tax has not been passed on to the ultimate customer in view of statutory pr....
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....e appellant could not establish that the claimed amount of refund towards tax has been paid relating to space selling service. Similarly, even on account of unjust enrichment, the issuance of credit note was held as not a conclusive proof in support that the incidence of tax has not been transferred by the appellant. Similarly, in Appeal No.ST/3479/2012, the RSA has observed that they have not been able to cross the bar of unjust enrichment as well as insufficiency of documents in support that tax paid pertains to service of space selling. It was also observed that certificate given by CA cannot be a substitute to the statutory returns. 14. Therefore, essentially in respect of Appeal No.ST/3478/2012, which is a consequential appeal, the matter was refund of amount, which was relatable to service tax paid in relation to space selling service or activities and not for newspaper promotion service. The RSA asked for certain documents in order to understand the breakup as the original demand was a consolidated amount for both the activities together under the BAS category, of which the space selling activity was held not leviable to service tax by the Tribunal during the material tim....
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....e applicant had satisfied the requirements of proviso 'd' to Section 11B(2) of the Central Excise Act, 1944 and was therefore, entitled to be paid the amount claimed as refund? 2. Whether the Tribunal after finding that the burden of duty was passed on by the applicant to its various dealers by issue of credit notes was right in concluding that the ingredients of Section 11-B were not satisfied." 16. This reference was answered by the Hon'ble High Court of Madras in favour of the appellant by the judgment dt.23.11.2000, wherein, inter alia, it was also held that section 11B cannot be construed as having reference to the ultimate consumer and it would be sufficient for the claimant to show that he did not pass on the burden of duty to any other person. However, this order was appealed by Revenue before the Hon'ble Supreme Court and the Hon'ble Supreme Court considered the submissions made by both sides and framed the question that in the given facts, whether the assessee was entitled for refund and whether there would be unjust enrichment if the said refund is allowed. Insofar as the eligibility of refund is concerned, it was found that such turnover discount given by wa....
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.... ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition. The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched". 17. Therefore, we find that it has been held that the test of crossing the bar of unjust enrichment is once it is proved that the incidence of duty has not been passed on to the ultimate customer. In this case, the CA certificate is on....
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....2:- 18. The matter is remanded back to the original RSA for re-computing the amount of consequential refund admissible on merit and to re-determine whether the incidence of service tax has been passed on to the ultimate customer or otherwise. Accordingly, this appeal is allowed by way of remand. Appeal No. ST/3479/2012:- 19. In this appeal, we note that the refund in this case is not consequential refund, as this period was not covered in the Tribunal's Order dt.05.04.2010, however, some of the observations made in the said order of the Tribunal has bearing in respect of this period also. Firstly, during this period, while there is no dispute that they will be liable to pay service tax on the activities relating to promotion of newspaper, however, during this period, there is dispute as to whether even under the category of selling of space, their activity would be included or will get excluded. We note that during this period, the classification of both the activities was done under BAS and payment of service tax thereon was under protest. In other words, the issue was not clear to appellant as regards the eligibility and classification, matter being subjudice before Trib....