Binu Tamta DECISION
Binu Tamta, Member (J)
1. The appellant has assailed the order-in-appeal no.246(AG)CE/JDR/2018 dated 03.05.2018,whereby the rejection of the refund claim on the ground of unjust enrichment in terms of Section 11B of the Central Excise Act, 1944 was upheld.
2. The brief facts of the case are that the appellant were engaged in providing services under the category of 'Erection, Commissioning or Installation Services', 'Business Auxiliary Services' and 'Management, Maintenance & Repair Services' to PHED and others during the period 2004-2005 to 2008-2009.
3. A show cause notice dated 14.10.2009 was issued to the appellant for recovery of service tax amounting to Rs. 40,56,133/-, which was confirmed by the Adjudicating Authority vide order-in-original dated 18.03.2011 beside interest and also imposed penalty. The appellant filed an appeal and in compliance to the Stay Order dated 28.12.2011 deposited an amount of Rs. 16,00,000/-. The Commissioner (Appeals) vide Order-in-Appeal No. 143 dated 15.04.2015 confirmed the demand of Rs. 12,03,204/- and rest of the demand was set aside. Penalty was also set aside. He observed that the appellant had paid service tax in excess of Rs. 7,24,463/-.
4. In view of the Order-in-Appeal dated 15.04.2015, the appellant filed the refund claim of Rs. 11,21,259/-. The Adjudicating Authority sanctioned the refund claim of Rs. 3,96,786/- to the appellant and the remaining amount of Rs. 7,27,463/- was directed to be credited to the Consumer Welfare Fund under Section 11B(2) read with Section 12C of the Central Excise Act on the ground of unjust enrichment under Section 11B of the Act, 1944. The appeal filed by the appellant was rejected by the impugned order and the plea of unjust enrichment was upheld. Being aggrieved, the appellant has filed this appeal before the Tribunal.
5. We have heard Shri Bipin Garg and Ms. J. Kainaat, learned Counsels for the appellant and Shri Arun Kumar Sheoran, Authorised Representative for the respondent/Department.
6. The issue that arises is whether the refund claim of the appellant has been rightly credited to the Consumer Welfare Fund on the ground of unjust enrichment. On perusal of the orders of the Authorities below, I find that the reasons for rejecting is that in terms of Section 11B of the Act, 1944, the appellant was required to submit such documentary or other evidences so as to establish that the amount of duty and interest, if any, and the incidence of such duty had not been passed on by him to any other person. Further, referring to the provisions of Section 12B of the Act, 1944, which provides that unless the contrary is proved by the assessee, it shall be deemed that the assessee has passed on the full incidence of service tax refund to the service receiver. In terms of the provisions, the applicant was required to submit the necessary documents and evidences in support of his claim that the principle of unjust enrichment would not apply as he has not passed on the incidence of duty to the service receiver. Both, the Adjudicating Authority and the Appellate Authority had specifically noted that either the appellant had not produced the documents or had only submitted the photocopies of the Ledger Account and invoices. In this regard, I would quote the findings of the Adjudicating Authority as under:-
"Further, as regards to the remaining amount, the assessee have only submitted photocopies of Ledger Account and photocopies of invoices issued in respect of M/s. Megha Engineering & Infrastructure Ltd., for the year 2008-09 only and 'no original invoices/Ledger are produced' by the assessee. The said invoices shows the month-wise amount charged for t........