TaxTMI 
TaxTMI 
2026 (7) TMI 765
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....Section 65(105)(zzzza), of the Finance Act the appellant obtained registration and started paid Service Tax of Rs. 1,06,31,288, for the period 05.05.2008 to 24.01.2011 along with interest of Rs. 2,33,874; the appellant has also paid VAT as applicable on part of the amount received; during the course of assessment of Sales Tax returns for the Financial Year 2007-2008, the State Commercial tax Department objected that the entire transaction between the Appellant and Rosa are of sale and accordingly, the appellant was required to pay sales tax on the total value; an Order No. J-7/2007-08/Dhara-28/21 dated 29.04.2010 was issued to this effect and the same was upheld by the Joint Commissioner of Trade Tax and further by the Hon'ble Allahabad High Court; as the service tax was not payable but paid by mistake, the appellant filed refund claims of service tax of Rs. 86,18,019 on 02.02.2012 and of interest of Rs. 2,33,874 on 29.11.2012. The appellant refunded the entire amount of service tax of Rs. 1,06,31,289, erroneously collected, to their customer/buyer M/s RPSC, by issuing credit notes dated 01.04.2012, followed by a bank guarantee dated 13.09.2013. 2.1. A Notice dated 20.03.201....
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.... has borne the incidence of such tax and the same has not been passed; the facts are also supported by the CA Certificate. It was held in many cases that the question of unjust enrichment does not arise where the assessee initially charged duty/tax and subsequently issued credit notes for the same. He relies on the following: * CCE Vs. Addison & Co. Ltd., 2016-VIL-49-SCCE * Jai Crop Ltd 2016 -VIL-834-CESTAT-MUM-CE * Larsen & Tourbo Limited 2020- VIL- 133- CESTAT-AHM-ST * Chowgule Brothers Pvt Ltd. Versus 2023 (3) TMI 890 (Tri. Ahmedabad) 4. Learned Counsel for the appellant submits further that the tax was not liable to be paid under the provisions of law and thus, the same is liable to be refunded; Order-in-Appeal dated 17.09.2012, categorically held that the Appellant is not liable to pay Service Tax as the activity of supply of RMC is in the nature of sale of goods and not works contract services. Tribunal held in in GMK Concrete Mixing Private Limited 2012 (25) STR 357 (Tri-Del) (upheld in 2015-VIL-Ol-SC-ST-LB) that contract for preparation and supply of RMC was a pure sale contract and does not entail any services. 5. Learned Counsel f....
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....sors Vs CCE [1994 (71)ELT 989(CEGAT), M/s S.Kumar's Ltd Vs CCE [2003(153)ELT 217] and CCE Hyderabad Vs TFLQuinn India (p) Ltd [2013 (294)ELT 421 (Tri-Banglore)], I am also in unison with the findings of the Adjudicating authority that even if the credit note is issued or duty collected is returned by cheque, doctrine of unjust enrichment still applied and refund can not be granted. I place reliance upon the decision of Hon'ble Madras High Court in Fenner India vs CESTAT (2014)305 ELT 524, wherein the court categorically held that, once the Incidence of duty is passed on, subsequent issuance of credit notes will not change the situation unless material evidence is produced to prove that the Incidence is suffered by them. The case laws cited by the appellant are not applicable as such in instant appeal as the facts and circumstances are not similar. Under the circumstances, I find no reasons to interfere in the judicious order passed by the adjudicating authority. Further, in the Appeal No. 33-ST/2014, the appellant pleaded that when the principal amount whose refund has been allowed and was not rejected on grounds of limitation of time, denial of refund of erroneous....
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....n to doubt the genuineness of the documents produced. The Appellate Authority allowed the appeal of the Assessee and the said order was confirmed by the Customs, Excise and Service Tax Appellate Tribunal vide judgment and order dated 6-10-2005. The said order of Central Excise and Service Tax Appellate Tribunal was further confirmed by the High Court of Judicature at Bombay in Customs Excise Appeal No. 100 of 2008 filed by the Revenue. The Revenue has filed the above Civil Appeal challenging the validity of the judgment of the High Court in Central Excise Appeal No. 100 of 2008. 36. Except for a factual dispute about the genuineness of the certificate issued by the Chartered Accountant and the credit notes raised by the Assessee regarding the return of the excess duty paid by the Assessee, there is no dispute in this case of the duty being passed on to any other person by the buyer. As it is clear that the Assessee has borne the burden of duty, it cannot be said that it is not entitled for the refund of the excess duty paid. In view of the facts of this case being different from Civil Appeal No. 7906 of 2002, the appeal preferred by the Revenue is dismissed." 10. In vie....
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....verned by the parameters applicable to the claim of refund of duty as the amount is deposited under Section 35F of the Central Excise Act, 1944. The Hon'ble Supreme Court vide its order dated 26-11-2001 dismissed the appeal. Even though the Apex Court 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. 3. 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. 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 pe....
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....fund. In this regard, we find that a Division Bench of Delhi High Court in Surinder Singh v. Union of India - 2006 (204) E.L.T. 534 (Del.) relying on Supreme Court's judgment in Prince Khadi Woollen Handloom Producers Co-operative Indl. Society v. CCE - 1996 (88) E.L.T. 637 (S.C.), said that State, if has wrongly collected 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 :- ....
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.... authority of law." 34. We may also refer here on a Division Bench's judgment of Karnataka High Court in Commissioner of Central Excise v. KVR Construction - 2012 (50) VST 469 = 2012 (26) S.T.R. 195 (Kar.), wherein construing Section 11B, Court said that it refers to claim for refund of duty of excise only and does not refer to any other amount 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....