ORDER
S.S. Kang
1. Heard both sides.
2. The appellant filed this appeal against the order in appeal whereby the refund claim of the appellant was rejected.
3. Brief facts of the case are that the appellant is engaged in the manufacture of the articles of the glass fibre. Appellant paid service tax for availing the service of goods transporter. On realising the mistake the appellant filed a refund claim which was received by the Revenue authorities on 19.12.2000 The adjudicating authority after giving a categorical finding that burden of service tax has not been passed on the transporter and it is borne by the assessee rejected the refund claim on the ground that since legally no tax was leviable and same has been paid without authority of law.
4. The appellant filed appeal and the Commissioner (Appeals) rejected the refund claim on the ground of principles of unjust enrichment after relying on the decision of the Hon’ble Supreme Court in the case of Mafatlal Industries Lid. Vs. UOI-1997(89) ELT 247.
5. The contention of the appellant is that the appellant deposited the amount in question representing service tax. Therefore, they are entitled for the refund. Appellant relied on the decision of the Tribunal in the case of M/s Hexacom (I) Ltd. Vs.CCE, Jaipur reported in 2003 (156) ELT 357 to submit that refund is maintainable, if any, amount is collected erroneously as representing service tax which is not in force.
6. The contention of the appellant is that the Commissioner (Appeals) wrongly held that the burden of duty has been passed on to the customer. The adjudicating authority gave a finding after verifying the record of the appellant that the burden of service tax has not been passed by the appellant.
7. Contention of the Revenue is that even for the duty paid by the assessee which is not leviable, the principle of unjust enrichment is applicable. The revenue relied on the finding of the Commissioner (Appeals) whereby it is held that the appellant have not proved that the burden of service tax was not passed on to the customer.
8. In this case the refund claim was rejected by the adjudicating authority only on the ground that since legally service tax was not leviable and the same has been paid without authority of law. There is no dispute that appellant paid the amount in question representing service tax which is not in force. The Tribunal in the case of Hexacom (I) Ltd. Vs. CCE, Jaipur reported in 2003 (156) ELT 357 held that if any amounts are collected erroneously as representing service tax, which is not in force, in such case there is no bar to the return of such amounts. In this situation, the refund claim is maintainable for the amount deposited by the appellant representing service tax.
9. The Commissioner (Appeals) rejected the refund claim on the principle of unjust enrichment. The contention of the Revenue is that a principle of unjust enrichment is applicable even in such cases. There is no doubt that any refund is subject to principles of unjust enrichment. In the present case, the adjudicating authority gave a finding on verification from their cashbooks, ledger, general voucher for payment of GR-I, freight payment account that is was found that burden of service tax has not been passed on to the transporter and it is borne by the party itself. This finding is not challenged by the Revenue. In these circumstances when there is a categorical finding that burden of service tax is borne by the appellant itself, the impugned order is not sustainable and is set aside. Appeal is allowed.