Page 139 - GSTL_11th June 2020_Vol 37_Part 2

2020 ] CONWOOD AGENCIES PVT. LTD. v. COMMISSIONER OF CGST, MUMBAI EAST 225
2.2 The refund claim filed by the appellants was rejected by the Deputy
Commissioner (Refunds) Service Tax-VI, Mumbai.
2.3 Against the order of Deputy Commissioner appellants preferred
any appeal before Commissioner (Appeals), which was rejected as per impugned
order in Para 1, supra.
2.4 Aggrieved Appellants have filed this appeal.
3.1 I have heard Shri Vijay Sachiv, Advocate for the Appellants and
Shri Onil Shivadikar, Assistant Commissioner, Authorized Representative for the
revenue.
3.2 Arguing for the appellants Learned Counsel submitted that they
had erroneously paid this service tax which was not required to be paid by them,
but was to be paid by the developers namely M/s. M. Construction Co. and As-
sociates as per the CBEC Circular issued vide F No 354/311/2015-TRU dated 20-
1-2016. Since they have erroneously paid this amount they have claimed the
amount paid as refund. If the amount cannot be refunded to them as they have
collected the same from their customers, in alternate the same should be adjusted
against the tax liability of M/s. M Construction Co & Associates.
3.3 Arguing for revenue Learned Authorized Representative submitted
that undisputedly appellants have recovered the amount paid by them as service
tax from their customers. Since they have recovered this amount from their cus-
tomers, they have passed on the burden of tax to their customers and hence in
view of the provisions of Section 11B as made applicable to Service Tax matter by
Section 83 of Finance Act, 1994, the refund is not admissible to them and has
been rightly rejected by the lower authorities.
4.1 I have considered the impugned order, submissions made in appeal
and during the course of arguments.
4.2 Undisputedly, Appellants have collected the service tax paid by
them from their customer, the fact not disputed by the appellants at any time.
During the course of hearing of appeal, to the specific query made by bench,
Learned Counsel replied and affirmed that they have collected the service tax
from their customers. It is settled law that once the appellant has passed on the
burden of Service Tax paid to their customers, the amount of tax paid even erro-
neously cannot be refunded to them. [Mafatalal Industries [1997 (89) E.L.T. 247
(S.C.)].
4.3 I also find that there is no provision in law for transferring the
amount, from the account of on registered tax payer to the account of another tax
payer from whom said amount of tax was actually due. Even otherwise the
amount, which had been paid by the appellants as tax which was not due from
them but has been collected by them from customers, will have to be credited to
the Consumer Welfare as per Section 11B, and cannot be retained as Service Tax
in Consolidated Fund. In view of the above position in law, the request made by
the appellant for adjusting this amount paid by them against the tax liability of
M/s. M. Construction & Co. cannot be acceded to.
5.1 In view of discussions as above, the appeal is dismissed.
(Order pronounced in the open Court)

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GST LAW TIMES  11th June 2020  139