Assessee entitled for refund of service tax paid under erroneous advice, subject to passing test of unjust enrichment

Commissioner of Service Tax Vs Foodworld (CESTAT Delhi)

Conclusion: Asessee was entitled to Service Tax Refund under errorneous advice of of service involved in sale of food to passengers subject to passing unjust enrichment test.

Held: Assessee was having STC No.AAAFF497EST001 and was mainly engaged in the business of sale of food on board the trains run by Indian Railways (under license). The hawkers of assessee carried food (ready to eat) with them and if any passenger desired, the same was sold at the specified price. Assessee was not appointed by the passengers and there was no obligation on the passengers to buy food. The present case pertained to sale of packed food on board the train, by the hawkers of assessee. The Hon‘ble High Court of Delhi in Indian Railways C. & T. Corpn. Ltd. Vs. Government of NCT of Delhi – 2010 (20) STR 437 (Delhi) held that sale of food on board the trains was a transaction of pure sale, and hence no service tax was leviable. Further, the Hon‘ble High Court even directed that any amount wrongly paid as service tax on the same, may be claimed as refund. In pursuance of the above mentioned judgement of the High Court, declaring the law, assessee filed refund claim dated 18.07.2011 for Rs.1,50,53,567/-. The case of the respondent – assessee was that service tax paid on supply of food under the head ―outdoor catering‖ was mistaken, as the transaction was purely one of sale of goods on which no service tax can be charged, nor was charged. Assessee had paid service tax separately on license fee paid to railways. It was held that transaction between assessee and the passenger who purchased the food was a simple sale transaction of food involving no element of service. Further the law had been clarified and declared by Hon‘ble Delhi High Court in the case of IRCTC and accordingly, assessee was rightly entitled the refund of the service tax paid under erroneous advice, subject to passing the test of unjust enrichment. In the facts of the present case, no machinery provision was also there for bifurcation of the transaction into service portion and sale portion, for levy of service tax. Rule 2C was introduced in the Service Tax Determination of Valuation Rules, 2006 with effect from 1 July, 2012 vide Notification No. 24/2012-ST, which had provided for mode of bifurcation by allowing abatement for the sale portion in the case of service of food in a restaurant or in the course of outdoor catering,

FULL TEXT OF THE CESTAT DELHI ORDER

The issue in this appeal filed by Revenue against the order of Commissioner (Appeals) is, whether the Commissioner (Appeals) has rightly held, following the judgment of Hon‘ble Delhi High Court in Indian Railways C & T Corpn. Ltd. Vs. Govt. of NCT of Delhi – 2010 (20) STR 437 (Del.), that there is no issue of taxability/non-taxability under the service tax and held that the activity of the respondent in selling packed food and beverages to passengers, on board trains and stations, already stands concluded by Hon‘ble Delhi High Court and holding that there is no liability under the provisions of service tax, ordered transfer of the amount refundable to the Consumer Welfare Fund, holding against the respondent assessee on the ground of unjust enrichment

2. The brief facts are that the respondent is engaged in the business of sale of packed food and beverages on board the trains run by Indian Railways besides sale of packed food items/beverages at stalls at railway stations. The hawkers of the respondent carry food with them for sale and if any passenger desires, the same is sold at the specified price. The respondent is not appointed by the passengers and there is no obligation on the passengers to buy food. The respondent is registered with the service tax department under the provisions of Finance Act, 1994 read with the rules. Under the erroneous advice, the respondent deposited the service tax under the head ‗outdoor catering service‘.

3. Hon‘ble Delhi High Court in the aforementioned judgment, look notice of the fact that IRCTC – a PSU had taken catering contract from Indian railways, on board the trains (Rajdhani and Shatabdi). IRCTC has further appointed sub contractors on back to back basis for the actual supply of food and beverages to the passengers under the main contract. The consideration for such supply of food and beverages is included in the fare (composite) charged by Indian railways from the passengers. IRCTC is paid by the railway. IRCTC have been paying VAT/sales tax in respect of such supply of food and beverages till 30 April, 2007. Thereafter as IRCTC was also paying service tax as outdoor caterer on the same activity, they sought a determination from the Commissioner – VAT, under Section 84 of Delhi Value Added Tax Act, on the taxability to VAT in respect of the food and beverages served to the passengers, on board the trains. It was held by the Commissioner – DVAT, that sales tax was payable on the supply of food and beverages on board the trains, since it amounted to sale within the meaning of Section 2(zc)(vii) of the DVAT Act. The Commissioner, VAT also held that there were three sales (point of sales), one from the licensee contractor to IRCTC, the second from IRCTC to railways and the third from the railways to the passengers. IRCTC challenged the order of Commissioner before the Delhi VAT Tribunal on the ground that these sub contractors of IRCTC, who were located outside Delhi also loaded the goods and supplying them to the passengers on running trains outside the Delhi state. Such sales shall be interstate sale or sale outside the Delhi state. It appears, during the pendency of the matter before the VAT Tribunal the assessment order for 2007-2008 was passed by VAT officer, following the determination order passed by the Commissioner, VAT. This assessment order also taxed under the VAT Act, foods and beverages loaded outside state of Delhi by various contractors. IRCTC was advised that there cannot be levy of both service tax as well as VAT on the same transaction. Further, service tax for catering on train was fully exempt vide notification dated 1.3.2006, which provided for 50% abatement for outdoor catering. IRCTC filed writ petition before the Delhi High Court on the submissions that service tax and VAT/sales tax operate in different fields and are mutually exclusive. It further urged that on account of determination order/assessment order passed under DVAT Act, the provisions of Section 2(zc)(vii) of the DVAT Act, 2004 have come in direct conflict with the provisions of Section 65(105)(zzt) of the Finance Act, 1994. It was further urged that DVAT department are seeking to collect VAT even in respect of the food and beverages which are not loaded on the trains in the territory of Delhi. IRCTC accordingly sought a declaration that the services, rendered by it on board the trains, are not liable to Value Added Tax and are liable to service tax alone. It was also prayed before the High Court, that in case it is held that the services provided by IRCTC along with food and beverages, amount to sale of goods, the provisions of Section 65(105)(zzt) of Finance Act, 1994 be declared ultra vires. Further, quashing of the assessment order for the period 2007-2008 as well as the determination order passed by the Commissioner, VAT was also prayed, and further order for restraining the respondent from levying sales tax/ VAT on the supply/services provided by the IRCTC. Union of India was also respondent No. 3 and 4 in the writ application, represented by their standing Counsel, however, no counter affidavit was filed by the Union of India.

4. The Hon‘ble Delhi High Court with its final order dated 19 July, 2010 held that the transaction between IRCTC and Indian railways cannot be said to be composite transaction involving sale of goods as well as providing of services. It was further held under the facts and circumstances, when the food and beverages are loaded on the train and the same are kept in the containers, hot box, cold box etc. as provided by the railways, property in the goods is transferred. Since there is transfer of goods by IRCTC to Indian railways for consideration, and the property in the goods also passes to Indian railways, the transaction between them is no doubt a case purely of sale of goods under the provisions of sale of goods, read with the provisions of DVAT. Further, the element of service by way of heating the food, heating/freezing the beverages and then serving them to the passengers is purely incidental and minimal required for sale of food and beverages in a transaction of this nature. There is no privity of contract between IRCTC and the passengers travelling in trains. No package of services is being provided to Indian railways by IRCTC. It is neither a contract for providing service nor a composite contract for sale/supply of goods and providing of service by IRCTC to Indian railways. Further, it is held that Delhi government is entitled to levy and collect VAT on the entire amount of consideration paid by Indian railway to IRCTC. Evidently as payment to IRCTC is required to be made by Indian railway, even if the food is not consumed by the passenger, also indicates transfer of property in the goods to Indian railway on their being loaded in the train and are being kept in the gadgets of Indian railway. IRCTC vehemently urged that since they are already assessed to service tax in respect of the same transaction, albeit with 50% abatement, it cannot be subjected to levy of VAT and in any case VAT can be levied only in respect of 50% of the transactional cost which is given as abatement to IRCTC. The High Court held that in its opinion the transaction under consideration is a transaction purely of sale of goods and not a composite transaction for sale of goods and rendering of service. It was further clarified by the High Court that VAT is leviable on the whole of the consideration paid by Indian railway to IRCTC. The Hon‘ble High Court further observed that it is open to IRCTC to claim refund of service tax already paid by it in respect of such transactions. If the refund is denied, IRCTC will be at liberty to initiate such proceedings as may be open to it in law in this regard.

5. Accordingly, respondent – M/s Foodworld filed refund application dated 18 July 2011 for Rs. 1,50,53,567/- (service tax for the period 2006-2007 to 2009-2010), relying on ruling of Hon‘ble Delhi High Court as aforementioned. Vide order-in-original dated 31 July, 2014 the Assistant Commissioner of Service Tax did not dispute the claim of refund on merits, but rejected the refund claim on the ground of unjust enrichment. It was further held that refund application is not maintainable in view of Section 73A(2) of the Finance Act, 1994, which, provides that even the service tax wrongly collected has to be deposited with the exchequer, and cannot be retained.

6. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals). The Commissioner (Appeals) was pleased to observe that so far taxability of the service tax is concerned on the sale of food in trains, the said issue stand decided in favour of the respondent assessee by Hon‘ble Delhi High Court, in its ruling in the case of IRCTC (supra). Further observing that the only issue remains is whether the refund claim is hit by the doctrine of ‘unjust enrichment‘ or not. The Assistant Commissioner has observed that as per the balance sheets for the period 2006-2007 to 2009-2010, M/s Foodworld have not reflected the amount as ‘service tax recoverable‘. Further contention of M/s Foodworld was noted that they have not collected any service tax and have paid service tax from their own pocket. M/s Foodworld has urged that mere book entry cannot be the basis for deciding the issue of unjust enrichment. The learned Commissioner relying on the ruling of Apex court in the case of M/s Sahkari Khand Udyog Mandal Limited Vs. CCE – 2005 (181) ELT 328 (SC) observed that the doctrine of unjust enrichment is based on equity, thus irrespective of applicability of Section 11B of Central Excise Act, the said doctrine can be invoked. Taking notice of the contention of M/s Foodworld that they have paid the service tax out of pocket and further they operate under a pre decided price structure and all the elements of price are clearly spelt out. Learned Commissioner observed that they have not submitted any agreement to this effect to substantiate their claim even at the appellate stage. Further appellant have not produced the certificate of Chartered Accountant so as to indicate that the amount for which refund was filed was not debited to profit and loss account as expenses. The argument of paying service tax from their own pocket, is at the best specious argument, aimed at throwing wool in the eyes of the authority and create confusion. Such statement needs to be backed by documentary evidences which have not been provided. Further observing that M/s Foodworld have not offered any documentary evidence to reach to a conclusion that the amount of tax against which the refund is claimed, was not forming part of the consideration. Learned Commissioner (Appeals) further observed that the precise manner of pricing of the goods/services is needed to be thoroughly examined in order to arrive at a conclusion whether or not the duty/taxes paid were part of the consideration. Owing to the fact that because the levies were not justified or legal, such levies being paid, would not have been part of the consideration in absence of express inclusion of those taxes paid cannot be acceded to, especially when no documentary evidence is placed on record to contradict the same. Accordingly, the learned Commissioner holding that M/s Foodworld has failed to pass the test of unjust enrichment, directed the sanctioned amount of refund be transferred to Consumer Welfare Fund in terms of Section 11B of the Central Excise Act.

7. Being aggrieved, Revenue have filed the present appeal inter alia on the ground that the respondent M/s Foodworld was not a party in the writ petition of IRCTC before Hon‘ble High Court. Therefore, the judgment delivered by Hon“ble Delhi High Court is not squarely applicable to them. It is further urged that judgment of Hon‘ble Delhi High Court has not attained finality inasmuch as IRCTC as well as the service tax department has filed SLP before Hon‘ble Supreme Court which have been admitted by order dated 21.10.2011 and converted to Civil Appeal Nos. 8970-8977 of 2011. The issue is subjudice before the Supreme Court, is that the services provided by IRCTC fall under the category of outdoor catering. Further such service provided by IRCTC on board the train is a composite package of services incapable of being segregated, in which food and beverages form part of a lump sum consideration. Further judgment of Hon‘ble Delhi High Court in IRCTC is contrary to the ruling in Bharat Sanchar Nigam Limited of the Apex court, wherein it is held that in case of composite contract, where the dominant object is to render service and not sale, as in case of IRCTC, no sales tax would be leviable. Further contended that the service provided on board both by the IRCTC and/ or contractor consists of a bundle of services, there is no break up of ticket cost into travel services and food cost. Further contended that the activity of IRCTC is a kind of hospitality and there is no sale of food and beverages. Further contended that the Hon‘ble High Court have erred in holding that the said service is not a composite service and no service tax can be levied. It is further urged that the activity in the transaction between IRCTC and the Indian railways amounted to outdoor catering service and attracts levy of service tax. Thus, there is error in the impugned order, in part, as learned Commissioner (Appeals) have held that service tax is not leviable on the activity of the respondent, following the ruling of the Hon‘ble Delhi High Court. Accordingly, it is prayed by Revenue for setting aside the impugned order and for such other orders as may be deemed fit and proper.

8. Learned Authorised Representative for Revenue Shri R.K. Majhi further urges that SLP have been admitted by Hon‘ble Supreme Court against the judgment of Hon‘ble Delhi High Court in IRCTC, thus the correctness of the judgment of High Court is in jeopardy. It is further urged that the respondent had suo motu taken registration and deposited service tax under the category of outdoor catering service. Pursuant to ruling of IRCTC case, the respondent have taken a contrary stand praying for refund. The main contention of the respondent has been that their activity is purely sales and no service element is involved. The issue before the Delhi High Court in IRCTC was – whether there is any service element involved qua activities of IRCTC. Thus, in the facts and circumstances the ruling the Hon‘ble High Court in IRCTC is in jeopardy, and secondly it is not applicable in the case of respondent assessee.

9. Opposing the appeal of Revenue, learned Counsel for respondent Shri Puneet Aggarwal, Advocate urges the following grounds and contentions:-

9.1. Present appeal has been filed by the Revenue against the Order-in-Appeal No.102/ST/DLH/ 2015 dated 07.01.2016 wherein the ld. Commissioner (Appeals-I) Service Tax, Delhi has partially allowed the appeal of the assessee – Respondent, and has credited the refund claimed by the assessee-Respondent to the Consumer Welfare Fund. Thus, the issue involved is whether unjust enrichment is attracted under the facts and circumstances.

9.2. Brief facts of the case are that the Respondent was registered under the Finance Act, 1994 having STC No.AAAFF497EST001 and is mainly engaged in the business of sale of food on board the trains run by Indian Railways (under license). The hawkers of the respondent carry food (ready to eat) with them and if any passenger desires, the same is sold at the specified price. The Respondent is not appointed by the passengers and there is no obligation on the passengers to buy food. The Respondents are also stated to be engaged in sale of packed food items/beverages at stalls at railways stations. The present case pertains to sale of packed food on board the train, by the hawkers of the Respondents.

9.3. This factual position has not been disputed by the Appellant Department. It is matter of common knowledge, the modus operandi of the food hawkers on board the trains. The period of dispute is 2006-07 to 2009 -2010.

9.4. The Hon‘ble High Court of Delhi in Indian Railways C. & T. Corpn. Ltd. Vs. Government of NCT of Delhi – 2010 (20) STR 437 (Delhi) (hereinafter referred to as the IRCTC Case) held that sale of food on board the trains is a transaction of pure sale, and hence no service tax is leviable. Further, the Hon‘ble High Court even directed that any amount wrongly paid as service tax on the same, may be claimed as refund. This judgment of the Hon‘ble High Court is in Rem (i.e. in general, as to question of law).

9.5. In pursuance of the above mentioned judgement of the High Court, declaring the law, the Respondent filed refund claim dated 18.07.2011 for Rs.1,50,53,567/-. The case of the respondent – assessee was that service tax paid on supply of food under the head ―outdoor catering‖ was mistaken, as the transaction was purely one of sale of goods on which no service tax can be charged, nor was charged. Respondent have paid service tax separately on license fee paid to railways.

9.6. The Assistant Commissioner of Service Tax vide Order –in-Original No.196/2014-R dated 31.07.2014, also did not dispute the claim of the petitioner on merits, but rejected on the ground that the petitioner had failed to pass the ground of unjust enrichment.

9.7. The Commissioner (Appeals) vide Order-in-Appeal dated 07.01.2016 allowed the appeal in part by sanctioning the refund to the Respondent, and modified the Order-in-Original dated 31.07.2014 to the extent that, the amount of the refund claimed be transferred to Consumer Welfare Fund.

9.8. Against the said order dated 07.01.2016, the Department has come in appeal before this Tribunal. The assessee has not filed any appeal, and hence the question before us is regarding the correctness of the said order dated 07.01.2016 passed by the Commissioner (Appeals), both as to sanction of refund and transferring the amount of refund allowed to the Consumer Welfare Fund.

10. The arguments of both the parties were heard extensively on 09.07.2021. The ld. DR reiterated the grounds of appeal, and though accepting that the judgement of Delhi High Court covers the matter, urges that the same is subject matter of further appeal before the Apex Court. The further argument of the ld. DR is that the Respondent – Assessee was not a party to the judgement of Delhi High Court. Per Contra Shri Puneet Agrawal, the ld. Counsel for the assessee, made detailed submissions in support of the fact that no tax can be imposed on the transaction of sale of food on board the trains. For this purpose, he explained that neither the tax can be constitutionally imposed by the Central Govt. on the disputed transactions, nor tax is actually imposed under service tax on the sale transaction. He further submitted that there is no mechanism under service tax to compute the value of the alleged service under the provisions of the Finance Act, 1994 or the rules made thereunder.

11. For deciding the present appeal, we deem it appropriate to frame the following questions:-

A. Whether the present transaction is one of sale of goods, and whether the transaction or any part of it can be subjected to service tax.

B. Whether the Finance Act, 1994 or the Rules made thereunder contain any machinery for determination of value of service component in a transaction like the present one.

C. Whether pendency of appeal before the Supreme Court (in IRCTC) or the Respondent – assessee not being a party to it, can make any difference in application of the jurisdictional High Court judgement, to the case of the assessee-Respondent.

D. Whether in the absence of any amendment to the Service Tax assessment, a refund can be sanctioned.

12. Before deciding these issues, we consider appropriate to extract the relevant provisions as they existed during the material period:

Constitutional Provisions Prior to 101^st Constitutional Amendment Act

1. VAT i.e. Sales Tax is imposable by the State under Entry No.54 of List II of the Seventh Schedule of the Constitution of India. To quote Entry 54, List II of the Seventh Schedule:

“54. Taxes on the sale or purchase of goods other than newspaper, subject to the provisions of Entry 92 A of List-1.”

2. Service Tax is imposed by the Union under the Residuary Entry i.e. Entry 97 which reads as :

“97. Any other matter not enumerated in List I or List II including any tax not mentioned in either of those Lists”.

Legal Provisions of Finance Act

3. Upto 15.05.2008

“65. In this Chapter, unless the context otherwise requires—

“(24) “Caterer” means any person who supplies, either directly or indirectly, any food, edible preparations, alcoholic or non-alcoholic beverages or crockery and similar articles or accoutrements for any purpose or occasion;

(76a) “outdoor caterer” means a caterer engaged in providing services in connection with catering at a place other than his own but including a place provided by way of tenancy or otherwise by the person receiving such services.

(105) “taxable service” means any service provided or to be provided –

(zzt) to a client, by an outdoor caterer,”

“65 B (44) “Service” means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include,

(a) An activity which constitute merely:-

(i) A transfer of title in goods or immovable property, by way of sale, gift or in any other manner; or

(ii) Such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of Article 366 of the Constitution; or

(iii) …………………..”

“66 B. Charge of Service Tax on and after Finance Act, 2012 – There shall be levied a tax (hereinafter referred to as the Service Tax) at the rate of fourteen per cent on the value of all services, other than those services specified in the negative list provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may be prescribed.”

“66E. Declared Service The following shall constitute declared services, namely :-

(a)     ….

(i) Service portion in an activity wherein goods, being food or any other article of human consumption or any drink (whether or not intoxicating) is supplied in any manner as a part of the activity.”

13. Rule 2C was introduced in Service Tax (Determination of Value) Rules, 2006, vide Notification No.24/2012-ST, dated 06.06.2012 (w.e.f. 01.07.2012). The same reads as under:-

“2 C. Determination of value of service portion involved in supply of food or any other article of human consumption or any drink in a restaurant or as outdoor catering- Subject to the provisions of the activity at a restaurant or as outdoor catering, shall be the specified percentage of the total amount charged for such supply, in terms of the following Table, namely:-

Explanation 1 – For the purposes of this Rule, ―total amount” means the sum total of the gross amount charged and the fair market value of all goods and services supplied in or in relation to the supply of food or any other article of human consumption or any drink (whether or not intoxicating), whether or not supplied under the same contract or any other contract, after deducting –

(i) The amount charged for such goods or services, if any; and

(ii) The value added tax or sales tax, if any, levied thereon:

Provided that the fair market value of goods and services so supplied may be determined in accordance with the generally accepted accounting principles.

Explanation 2.- For the removal of doubts, it is clarified that the provider of taxable service shall not take CENVAT credit of duties or cess paid on any goods classifiable under Chapters 1 to 22 of the Central Excise Tariff Act, 1985 (5 of 1986)”.

It is noted that Rule 2 C was introduced in the Valuation Rules for the first time w.e.f. 01.07.2012, and prior thereto, there was no similar provisions in the Act/Rules for determination of value of the catering /restaurant services.

14. We take the third issue (C) first, as regards the applicability of the ruling of Hon‘ble Delhi High Court in IRCTC case to the facts of the present case. In the case of IRCTC they were supplying food under contract to the railways through their agent or sub- contractors, for which they were being paid by the Indian railways. Further Indian railways are paying to IRCTC out of the consolidated ticket value collected by them from the passengers which does not contain any breakup of the amount towards travel charges and food charges. Whereas in the facts of the present case, the appellant is a licensed vendor who were entitled to sell food on the trains and at the stations. The assessee is paying license fee to the railways for such entitlement to sell such packed food and are further paying service tax separately on the license fee. The staff or hawkers of the respondent assesee move in the trains or at the station offering food for sale to the passengers. The passengers are under no obligation to buy food from the respondent. Thus, we find that the transaction between the respondent assessee and the passenger who purchases the food is a simple sale transaction of food involving no element of service. We find that the facts in the present case are even better than the facts in the case of IRCTC. Accordingly, we hold that there is no element of service involved in the sale of food by the respondent assessee to the passengers. Further we find that the law has been clarified and declared by Hon‘ble Delhi High Court in the case of IRCTC and accordingly, the respondent assessee is rightly entitled the refund of the service tax paid under erroneous advice, subject to passing the test of unjust enrichment. We further hold that the pendency of appeals of the service tax department as well as IRCTC before Hon‘ble Supreme Court have got no bearing in the facts and circumstances of the present case.

15. Further we find that in the facts and circumstances in the transaction of sale, as in the facts of the present case, no machinery provision was also there for bifurcation of the transaction into service portion and sale portion, for levy of service tax. We find Rule 2C was introduced in the Service Tax Determination of Valuation Rules, 2006 with effect from 1 July, 2012 vide Notification No. 24/2012-ST, which has provided for mode of bifurcation by allowing abatement for the sale portion in the case of service of food in a restaurant or in the course of outdoor catering. We find that even under Rule 2C, the activity of the respondent assessee is not covered.

16. Notwithstanding the merits of the refund claims, once the assessee has paid duty and filed return and if the assessments were not modified or appealed against as was held in the judgment of the Larger Bench of Hon‘ble Supreme Court in the case of ITC Ltd., vs. CCE, Kolkata-II [2019 (368) ELT 216 (SC)], no refund can be sanctioned. It needs to be examined if the assessments have been appealed against and modified as this fact is not clear from the impugned order.

17. Further we find that the Commissioner (Appeals) have without examining the issue of unjust enrichment and without giving proper opportunity of hearing and to lead evidence on the issue of unjust enrichment, have simply made a bald allegation that the assessee did not lead evidence before him, by a non-speaking order. He also did not indicate if the assessments have been modified. Accordingly, in the interest of justice, we allow this appeal by way of remand to the Commissioner (Appeals) for deciding the issue of unjust enrichment after providing reasonable opportunity to the respondent assessee to lead evidence and file representation in support of their contentions and also examine the eligibility of refund in the light of the judgment of Supreme Court in the case of ITC (supra). The respondent assessee is also directed to appear before the Commissioner (Appeals) within a period of 60 days from the date of receipt of copy of this order along with evidence as regards unjust enrichment and evidence regarding assessments being modified in appeal and seek opportunity of hearing. The Commissioner (Appeals) is expected to pass an order within three months from the date the respondent assessee appears before him for hearing considering all aspects as above.

18. Thus, the appeal is allowed by way of remand.

(Pronounced in Court on 02.02.2022).