M/S.Shubh Labh Agency vs Cce, Bhopal
- CitationAppeal No.ST/925/2009-CU (DB)
Ratio decidendi
The rule this decision rests on
Where a claimant seeks refund of service tax on the basis of an earlier tribunal order, the refund is barred by the doctrine of unjust enrichment under section 11B of the Central Excise Act, 1944, as applied to service tax by section 83 of the Finance Act, 1994, if the tax burden was passed on to and the cenvat credit of it utilised by the customer; and the onus lies on the claimant to establish that the burden of the tax was not passed on to others, failing which the refund claim fails.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Date of Hearing/Order: 09.07.2015
(Arising out of Order-in-Original No.288/BPL/2009 dt.27.7.2009 passed by the CCE (Appeals), Bhopal)
Honble Mr.R.K.Singh, Member (Technical)
Honble Ms.Sulekha Beevi C.S., Member (Judicial)
1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? no 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? no 3. Whether their Lordships wish to see the fair copy of the order? seen 4. Whether order is to be circulated to the Department Authorities? yes
M/s.Shubh Labh Agency Appellant
Vs.
CCE, Bhopal Respondent
Present for the Appellant: None
Present for the Respondent: Shri M.R.Sharma, AR
Coram: Honble Mr.R.K.Singh, Member (Technical)
Honble Ms.Sulekha Beevi C.S., Member (Judicial)
FINAL ORDER NO.52405/2015
PER: R.K.SINGH
Appeal has been filed against Order-in-Appeal dated 27.7.2009 which upheld the Order-in-Original dated 20.2.2009 in terms of which the refund claim of Rs.5,49,539/- was rejected.
2. When the case is called today, there is no representation on behalf of the appellant nor is there any request for adjournment. Earlier also notice was sent to the appellant for appearing for hearing on 30.4.2015, but nobody appeared on the behalf of the appellant on that day also and therefore the matter was adjourned for today. The learned DR states that the issue should be decided on merit without further adjournments and we agree and proceed to decide the matter on merit.
3. The appellant had filed refund claim claiming it to be consequent upon the CESTATs Final Order dated 7.7.2008. We find that the Commissioner (Appeals) has given clear finding that amount of refund claim is in respect of service tax which has been recovered from the customer namely M/s.J.P.Cement,Rewa and M/s.J.P.Cement has taken cenvat credit of the said service tax and utilized for payment of Central Excise Duty on its finished products and therefore the refund claim is hit by the doctrine of unjust enrichment under section 11B of Central Excise Act, 1944 made applicable to the service Tax matters by virtue of section 83 of the Finance Act, 1994. It is pertinent to mention that the onus is on the appellant to establish that the burden of service tax for which refund is claimed had not been passed on to others and that onus has clearly not been discharged by the appellant. In these circumstances, we do not find any merit in the appeal and the same is therefore dismissed.
(dictated and Pronounced in the open court)
(SULEKHA BEEVI C.S.) (R.K.SINGH)
MEMBER (JUDICIAL) MEMBER (TECHNICAL)
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