Page 138 - GSTL_11th June 2020_Vol 37_Part 2

224 GST LAW TIMES [ Vol. 37
2020 (37) G.S.T.L. 224 (Tri. - Mumbai)

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI
Shri Sanjiv Srivastava, Member (T)
CONWOOD AGENCIES PVT. LTD.
Versus
COMMISSIONER OF CGST, MUMBAI EAST
Final Order No. A/87204/2019-WZB, dated 8-11-2019 in Appeal
No. ST/85026/2019
Refund - Unjust Enrichment - Undisputedly, appellant has paid Ser-
vice Tax in excess which they were not supposed to pay - Also undisputedly,
they have collected said amount of tax from their customers - Thus they are not
entitled for refund as burden of tax has already been passed on - Their plea
that said amount be allowed to be adjusted against their customer’s tax liabil-
ity not acceptable, as such amount while can be transferred to Consumer Wel-
fare fund, there is no provision for adjusting same against liability of Custom-
er - Section 11B of Central Excise Act, 1944 as applicable to Service Tax vide
Section 83 of Finance Act, 1994. [paras 4.1, 4.2, 4.3]
Appeal dismissed
CASE CITED
Mafatlal Industries Ltd. v. Union of India — 1997 (89) E.L.T. 247 (S.C.) — Relied on .................. [Para 4.2]
DEPARTMENTAL CLARIFICATION CITED
C.B.E. & C. Instruction F. No. 354/311/2015-TRU, dated 20-1-2016 ..................................... [Paras 2.1, 3.2]
REPRESENTED BY : Shri Vijay Sachiv, Advocate, for the Appellant.
Shri Onil Shivadikar, Assistant Commissioner (AR),
for the Respondent.
[Order].- This appeal is directed against Order-in-Appeal No.
PK/903/ME/2018, dated 4-10-2018 of the Commissioner CGST and Central Ex-
cise (Appeal-II), Mumbai. By the impugned order, Commissioner (Appeals) has
held as follows :
“8.1 Respectfully following the judgment of Hon’ble CESTAT, I hold that
the adjudicating authority has rightly rejected the refund claim in terms of
provisions of Section 11B of the Central Excise Act, 1944 as made applicable
to Service Tax matters under Section 83 of Chapter V of Finance Act, 1994
as the appellant has collected the service tax amount from their customers
and this fact has also been confirmed by the appellant. Also there is no pro-
vision under the present service tax law for adjustment of service tax pay-
ments from the account of one registered unit to the account of another reg-
istered unit. In view of the above, the impugned order of the lower adjudi-
cating authority rejecting the refund claim needs no interference and is up-
held, Held Accordingly.”
2.1 Appellants had filed a refund claim for Rs. 29,48,443/-, paid as ser-
vice tax on 15-1-2016. They have preferred this refund claim on the ground that
they have paid this amount towards service tax erroneously as the same was to
be paid by the developer M/s. M. Construction Co and Associates as per the
CBEC Circular issued vide F No 354/311/2015-TRU, dated 20-1-2016.
GST LAW TIMES  11th June 2020  138