Held - In the facts and circumstance, it is the appellant who has borne the burden of tax. It does not make any difference whether the amount is debited in the profit and loss account or it is shown as amount receiveable on the asset side in the balance sheet, in either case the burden falls on the appellant-assessee only. In view of my finding and observations, I hold that the appellant has passed the test of unjust enrichment. Accordingly, the appeal is allowed and the impugned order is set aside. The appellant is entitled to consequential benefits, if any.

Held - I find that admittedly, appellant have not charged service tax under dispute in their invoices. Further, admittedly these amounts were paid under protest at the investigation stage and thereafter, the show cause notice was issued. In these circumstances, I hold that only by way of bit in profit and loss account, it does not amount to passing of the burden to a third person or the customer indirectly. An assesse is always at liberty to right back the expenditure debited in profit and loss account by way of adjustment in their capital account.In view of my aforementioned findings and observations, I allow this appeal and set aside the impugned Order-in-Appeal. The appellant is entitled to consequential benefits.

Held - It also needs to be noted that the refund claim has been rejected on the ground that in 2006-07, the amount deposited was accounted as „expense‟ in the Profit and Loss account of the appellant, meaning thereby that the burden of duty had passed.The method of accounting followed by an assessee does not impact the admissibility of refund, and cannot be made a basis to hold that the incidence of duty had passed. In this regard, reliance can be placed on the decision of the Tribunal in Commissioner of Customs, ACC Import Commissionerate, New Customs House, New Delhi vs. UT Electronics Private Limited. The Tribunal held that merely because the excise duty is booked as „expenditure‟ in Profit and Loss account, it cannot be said the incidence of duty had passed. A similar view was taken by the Tribunal in Allied Chemicals & Pharmaceutical Private Limited vs. CCE & ST, Jaipur-I 11 . In any case, the entry made by the appellant of the amount in 2006-07 was neutralized by the appellant in 2016-17, when the appellant booked the same amount as „recoverable‟ in its books under the head “current assets”, after the appeal was allowed by the Tribunal.