CESTAT, Mumbai Bench

Sanjivani Business Consultants (P.) Ltd.

v.

Commissioner of Central Excise, Mumbai-I

M.V. RAVINDRAN, JUDICIAL MEMBER

APPEAL NO. ST/32 OF 2007 - MUM

ORDER NO. A/829/07 WEB / SMB

May 29, 2007

Section 11B of the Central Excise Act, 1944 - Claim for refund of duty - Assessee claimed refund of amount of service tax paid in excess - Lower authority rejected assessee’s claim - On appeal, Commissioner (Appeals) upheld order of lower authority on ground that assessee had not been able to bring on record any document to rebut statutory presumption raised under section 12B of having passed on incidence of duty to buyers - In instant appeal, assessee produced chartered accountant certificate and confirmation from customer that service tax incidence was not passed on to them by assessee - Whether since in interest of justice, documents should be produced before lower authorities, to appreciate and come to a proper conclusion, matter was to be remanded back to original authority to reconsider issue afresh - Held, yes [Paras 3 and 4]

FACTS

The assessee claimed refund of the service tax paid in excess. The lower authority transferred the amount of refund claimed to consumer welfare found on appeal, the Commissioner (Appeals) upheld the order of the order of the lower authority on the ground that the assessee had not been able to bring on record any document to rebut the statutory presumption raised under Section 12B of having passed on incidence of duty to the buyers. In instant appeal, the assessee produced a Chartered Accountant certificate and confirmation from the customer that service tax incidence was not passed on to them by the assessee.

HELD

Since all the evidences were not produced before the Commissioner (Appeals), in the interest of justice, the documents should be produced before lower authorities, to appreciate and come to a proper conclusion. [Para 3]

Accordingly, the appeal was to be allowed by way of remand to the original adjudicating authority to re-consider the issue afresh after going through the evidence that may be produced by the assessee [Para 4]