PREMIER LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) HEARD both sides.

(2.) The appellant filed this appeal against the impugned order whereby the Commissioner (Appeals) upheld the rejection of refund claim on merit as well on unjust enrichment.

(3.) THE Revenue relied upon the findings of the lower authorities. The learned A.R. submitted that as the appellant has shown the amount of Service Tax separately on the invoices therefore the onus falls on the appellant to prove that the burden of tax has not been passed on to the consumers. The appellant could not discharge the burden of proof cast on them by showing the Books of Accounts that the appellants have not received the amount of Service Tax. Hence the impugned order is rightly made. We find that the activity undertaken by the appellant is in respect of machining and flame hardening on forgings and castings received from the principal manufacturer. The appellants are working under the provisions of Notification 214/86 -C.E. In the show -cause notice the fact is admitted. The activity undertaken by the appellant is a part of manufacturing process and the principal manufacturer was paying duty on the goods processed by the appellants. Therefore we find that the appellants are not liable to pay Service Tax under the Business Auxiliary Service during this period. In respect of unjust enrichment, we find that the appellant admitted the fact that though the amount of Service Tax was shown in the invoice but not received by them. In view of the above facts, we find the matter requires reconsideration by the adjudicating authority regarding unjust enrichment. The issues of unjust enrichment is remanded back to the adjudicating authority for consideration and to decide afresh after affording an opportunity of hearing to the appellant. Appeal is allowed by way of remand.