ORDER
P. Karthikeyan, Member (T)
1. These appeals directed against the Orders in Appeal Nos. 64 & 65/2000, dated 15.09.2000, pertain to the following Orders in Original:
S.No. Order In Original Appellants 1 No. 13/2000 dt. 6.1.2000 M/s. Sudarsanam Spinning Mills. 2 No. 10/2000 dt. 6.1.2000 M/s. Vishnu Shankar Mills Ltd.
As per the impugned orders, the appellants had failed to satisfy the lower authorities that the refund amounts claimed by them had not been passed on to their customers. The original authority had sanctioned the impugned amounts and credited them to the Consumer Welfare Fund. The lower appellate authority affirmed the Orders in Original.
2. The Ld. Counsel for the appellants submits that in these cases the tax amounts had been paid in TR-6 Challans long after the services were availed and payments made. They were in possession of certificate from the Chartered Accountant to the effect that the amount claimed had not been passed on to the buyers of cotton yarn manufactured by them. The Ld Counsel prays for another opportunity to establish the eligibility of the appellants to receive the refund amounts and that no unjust enrichment would be involved in sanctioning the impugned amounts.
3. Ld. SDR submits that the appellants had paid the service tax legitimately due from them, in view of the retrospective legislation in the wake of the judgment of the Apex Court in Laghu Udyog Bharati case 1999 (112) ELT 365 (S.C), deciding certain service tax rules to be ultravires. Therefore, she submits that the appellants are not eligible for the refund claimed.
4. After hearing both sides and on going through the case records, I find that the original authority had sanctioned the refunds but had credited the amounts to the Consumer Welfare Fund. The appellants had approached the Commissioner (Appeals) against the order of the original authority. The lower appellate authority affirmed the order of the Assistant Commissioner and found that the appellants had not been able to establish that the impugned amounts had not been passed on to their customers. The revenue has not challenged either of the orders. Therefore, the appellants are eligible to receive the refund subject to the appellants establishing that the grant of refund would not involve unjust enrichment. In the circumstances, I allow these appeals and remand the cases to the original authority to decide the question of unjust enrichment afresh. Needless to say that the appellants shall be provided adequate opportunity for presenting their case. The appeals are disposed of accordingly.
(Dictated and pronounced in the open Court)