2018 (8) TMI 811 – CESTAT ALLAHABAD – TMI – Refund of Service Tax paid – denial on the ground of unjust enrichment – bottling of alcoholic liquor conceived as Business Auxiliary Services and tax was erroneously paid – section 11B of the Central Excise Act – Held that:- The said certificate dated 09.12.2017 was not before the authorities below and as such does not stand considered by them. Inasmuch as the said certificate is an important document, the appellant should be given an opportunity to place the same before the lower authorities and to re-decide the issue by taking the said certificate into consideration – appeal allowed by wya of remand. – ST/70029 & 70030/2018-ST[SM] – A/71382-71383/2018-SM[BR] – Dated:- 10-7-2018 – MRS. ARCHANA
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ppellants filed refund claims for the same vide their two separate applications dated 05.10.2015. 2. The lower authorities held the refunds to have been filed well within time as also allowed the same on merits, but rejected it on the ground of unjust enrichment. On an appeal against the order of the original adjudicating authority, Commissioner (Appeals) modified the order of the lower authorities and held that the refund amounts have to be credited to the Consumer Welfare Fund as provided under section 11B of the Central Excise Act, instead of giving it to the appellant as the same would be hit by the bar of unjust enrichment. 3. On going through the said order of Commissioner(Appeals) I note that he has made a reference to the Hon ble Su
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act that Service Tax was shown separately in the invoices and subsequently by way of credit notes, was refunded to the customer M/s. United Spirits on whose behalf they are manufacturing the spirits. He submits that the price of the alcohol is fixed by the state govt. in which case the manufacturer and seller of the spirits is required to sell the goods at the fixed price, irrespective of the fact that whether Service Tax has been paid or not. In such a scenario the factum of collection of Service Tax from the ultimate buyer does not arise. For the above proposition ld. Advocate relies upon the Tribunal decision in the case of Tamralipta Co-Op. Spinning Mill Ltd. v. Commr. Of C.Ex., Calcutta-II [2003 (162) E.L.T. 840 (Tri.-Kolkata)] Ld. Adv
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