Chowgule Brothers Private Limited Vs C.C.E. Kutch (Gandhidham) (CESTAT Ahmedabad)
CESTAT held unjust-enrichment does not exist in the case where the assessee initially charged duty / service tax and subsequently issued the credit note for the same.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
The issue involved is that whether the refund of the appellant is hit by mischief of unjust-enrichment as per Section 11 B (1) of Central Excise Act, 1944.
2. Shri. Jigar Shah, learned Counsel appearing on behalf of the appellant submits that the sole basis of crediting the refund in Consumer Welfare Fund given by the Commissioner (Appeals) relying on the decision of the Hon’ble Supreme Court in the case of CCE Vs. Addison & Co. Ltd -2016-VIL-49-SC-CE . He submits that though the appellant have initially charged the service tax to the customers but subsequently returned the same by issuing the credit note, therefore, there is no unjust-enrichment on the part of the appellant. He further submits that even though the appellant have initially charged service tax to the customer, the same was not further passed on by the said customers to any other person. He placed reliance on the following judgments:-
- CCE Vs. Addison & Co. Ltd -2016-VIL-49-SC-CE
- Jai Crop Ltd Vs. CCE – 2016 –VIL-834-CESTAT-MUM-CE
- Larsen & Tourbo Limited Vs. CCE – 2020- VIL- 133- CESTAT-AHM-ST
- Shayam Steel Industries Ltd Vs. CGST – 2021- VIL- 419- ESTAT-KOL-CE
- Gail (India) Ltd Vs. CCE – 2016 (46) STR 698 (T)
3. Shri. Rajesh k Agarwal, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order.
4. I have carefully considered the submission made by both sides and perused the records. The limited issue before me is to decide that in spite of issuing the credit note by the appellant to their customers towards the service tax which was initially charged whether the unjust-enrichment exists or otherwise. I find that there is no dispute that the appellant have initially charged service tax to the customer. Subsequently, the same was reversed by issuing the credit note to the customers, therefore, the incidence of the service tax paid by the appellant was not passed on this issue has been considered in the following judgments:-
