ORDER
1. On hearing both sides it appears that the appeal itself could be disposed off at this stage. This was done on granting waiver of pre-deposit of service tax confirmed of Rs. 4,32,375/-.
2. The appellant provided engineering services to M/s Larsen & Tourbo Limited and paid the service tax and also included the same in the bills raised on M/s Larsen & Tourbo Limited. They later (sic) that M/s Larsen & Tourbo Limited being consulting engineers themselves were liable to pay the service tax on the services rendered by them to the customers. On that ground they filed a refund claim of the tax already paid. The Dy. Commissioner accepted the contention and directed refund to be paid. This order was reviewed by the jurisdictional Commissioner in terms of Section 84 of the Finance Act, 1994.
3. In the notice sent to the present appellant it was claimed that since the burden had been passed on by the present appellant to M/s. Larsen & Tourbo Limited, in terms of the provisions of Section 11B of the Central Excise Act, 1944, as made applicable to matters pertaining to service tax, the bar of unjust enrichment would apply. Before him a plea was made that credit notes had been issued by the appellant to M/s. Larsen & Tourbo Limited before filing refund claim and as such burden and had not been passed on by them to their customers. In this context they relied upon the Tribunal judgment in the case of Indo Flogates Limited Vs. CCE, Bhubaneshwar 1998 (102) ELT 463. The Commissioner, however, relied upon the Tribunal judgment in the case of CCE, Madras Vs. Addison & Company 1997 (93) ELT 429. In this judgment the Tribunal held that the post clearance transaction by issue of credit note did not entitle the claimant to claim refund. On his setting aside the lower order and confirming the demand for recovery, the present appeal has been filed.
4. Shri Prakash Shah relies upon a later judgment of the Tribunal in the case of Thermon Heat Tracers Ltd. Vs. CCE, Pune 2001 (45) RLT 85 in which the judgment cited and relied upon by the Commissioner had been taken into account and also the Supreme Court judgment in the case of Mafatlal Industries Ltd. Vs. UOI 1996 (17) RLT 907. In paragraph 8 of the Tribunal has followed as follows:
“8. We must note here the significance of the clause in that section permitting refund in cases where, although the incidence of duty has been passed on, it has been returned to the claimant. There is no such express provision in Section 11B of the Act with which we are concerned. However, the philosophy that infuses the amendment made to Section 11B is that it is the person who suffers the burden of duty who should get the refund of that duty. This, in fact, is what the Court has explicitly said in the words of the majority that we have reproduced in paragraph 8 above. The earlier decisions of the Tribunal would no longer be applicable in the light of this judgment.”
5. The facts being identical the ratio of this judgment would apply to the case before me and the appellant would be eligible for the benefit thereof. Shri B.B. Sarkar arguing for the Revenue before me submits that Revenue’s interest should safeguarded by verification that the credit notes infact honoured before granting the benefit of refund by the appellant. This is a reasonable submission.
6. The appeal is allowed. The departmental authorities shall be free to verify the effect of the credit notes issued by the present appellant.