M/S. SUCHI FOAMS Vs. CST AHMEDABAD

JUDGEMENT

(1.) THIS appeal is directed against order -in -appeal No. 278/2011(STC)/K.ANPAZHAKAN/Commr.(A)/Ahd, dt. 21.10.11. The facts of the case, in brief, are that the appellants are engaged in providing service under the category of "Erection, Commission and Installation" as defined under Section 65 of the Finance Act, 1994 (hereinafter referred to as "the Act") and hold valid Service Tax Registrations No. ABKPA6570CST001. The said appellants had applied for refund of Rs. 50,692/ - on 04.11.2010 on the grounds of excessive/double payment of service tax due to mistake in reconciliation by Audit party of ST -3 Returns with income of service as per books of accounts. The appellants stated that the audit party had conducted an audit in November 2009 of their records for the period October 2006 to December 2008. During the course of audit and reconciliation of ST -3 returns for payment of service tax in respect of service "Erection, Commission and Installation" with the ledger of other income related with the said service, it was noticed that they had short paid service tax of Rs. 39,113/ - during the period of 2006 -07 and 2007 -08, hence on pointing out the same by audit, they had paid service tax of Rs. 39,113/ - along with interest of Rs. 11,579/ -. The appellants further submitted that they had realized that there was a mistake on the part of audit party in reconciliation of ST -3 returns with the ledger of "Other income" for the period of F.Y. 2006 -07 and 2007 -08. The appellant has submitted that the Audit has wrongly reconciled the service tax returns covering the period of October 2006 to March 2007 and April 2007 to September 2007 with the ledger income related to F.Y. 2006 -07 instead of reconciling service tax returns for the period of F.Y. 2006 -07. Similarly, service tax returns covering the period of October 2007 to March 2008 and April 2008 to September 2008 were also wrongly reconciled with the ledger income related to F.Y. 2007 -08 instead of reconciling service tax returns for the period of F.Y. 2007 -08. The appellant's refund claim was rejected by the adjudicating authority.

(2.) AGGRIEVED by such an order, the appellant preferred an appeal before the first appellate authority. The first appellate authority in principle agreed that the appellants are eligible for refund but appellant having not passed the hurdle of unjust enrichment, the amount was credited to the consumer welfare fund.

(3.) HEARD the ld. D.R. who reiterates the findings of the lower authorities.